sing allison mails on the half of the appellant i hear you know mr barry found two motions to suppress in the district court and after they were denied he entered a conditional plea of guilty the plea is conditioned on the outcome of this appeal the two much as to suppress address different issues the first address is the seventy three day g p s surveillance of mr barry without a warrant and the second addresses the hour long traffic stop of mr barry that we contend exceeded its permissible scope i would like to focus this morning on the first motion which addresses the g p s surveillance after all the briefing  issue comes down to one question and that is did this circuit's president specifically authorize the government to do what it did and the answer is no this case was without precedent the government does not and cannot dispute that the duration of this g p s surveillance seventy three days more than ten weeks far exceeds the scope of any other case before it and the technology warrants mention to the record evidence in this case is that radio transmitter beeper we know today that the government could not do what it did without getting a warrant united states v jones addressed that issue the government's position here is that prejudge tones the use of a g p s device was quote not a fourth amendment concern in other words the government could choose to monitor someone anyone for days weeks months were all about in with no judicial oversight and no risk of recourse that's the government's position in fact actually the government's position is a little bit worse because in this case never mind judicial oversight there was no oversight at all one day e a a agent decided to use this device he testified that he was the decider on manual would have required him to first get approval from the u s attorney's office he didn't do that he said he had an understanding with that office but he edited he never talked to the office about that either so never mind a neutral judicial magistrate there was no position is that is ok because the fourth amendment is irrelevant pretty john's now that's the position but to avoid suppression the government has to  circuit precedent that specifically authorized it to do what it did so let's look at that precedent the government has relied in this litigation on united states v michel that's  of surveillance actually not this kind of surveillance for a much much shorter surveillance was a search within the meaning of the fourth amendment so the fourth amendment is not irrelevant under michael and even michael required for search reasonable suspicion so it's not true that that michael supports the government's position but michael's not the last word this court judge jones sitting on the panel address g device in question actually operated a lot like the old school my book michael bieber and the agents in that case only used it to monitor the suspect a single trip so this court in hernandez said that under those circumstances a very unsophisticated g p s device that operated like a beeper that was used solely to monitor the suspect for a single trip they used did not require a warrant because it fell and then michael's scope but importantly for our purposes today the court addressed the possibility that a far more sophisticated g p s device for an extensive period of time and i think the court was contemplating at that point about twenty eight days would raise constitutional concerns and m very well her car wants a g p s violate people's rights or is it the fact that the agents monitor the g p s is a good question because there's a distinction between installation and use i think that collecting information while they never denied that it collected information then what do you mean collected information gathering data predicted to provide a map in other words the officer isn't sitting there watching a g monitor right it's sarah seventy three days as correct no but the government's computer system is collecting the information in the data is there and the fourth amendment is concerned with the search for instance if the government takes my personal diary and photocopies it and throws the photocopy in a lockbox and says well no one's ever going to look at it i mean that helps my feelings a little bit i'm still violated well since you've got eight minutes left are you going to get to the andras case i will i'd like to say that that well i'll address that very quickly that that case was decided under plane air review   i don't think that it controls here i think these facts are distinguishable it was plainer review and i don't think that they looked at this the way this court should look at this case which is the way that i think justice alito would have looked at this case before him and you can refer to justice alito as concurrence which is joined by ginsburg brier and kagan in united states v jones he says we don't have to know whether to draw the line but surely the line was crossed at twenty eight days and if there's no exigency you've got to get a warrant here where it's seventy three days i would just like to say to return to name and as this court concluded that opinion and said we don't decide the issue of existence of surveillance today that case is not before us that's what hernandez says that's the concluding remarks now what does that mean for us today what that means is the issue was decided which means that no circuit precedent specifically authorize the government to do what it did which means that the government is not entitled to the good faith exception as articulated in united states v davis now i'm worried about davis this case is good as a hot davis is yes good faith based on do you have to have a case in point to support good faith or do you just have to have a reasonable belief now you have to have a case  point i don't but i don't think that's right this otherwise why bother good faith i mean you just see the they're violated or you haven't violated your honor this court before united states who davis this court required incident to arrest at a traffic stop and applying belton's bright line rule they search the automobile fast forward to arizona v gant me if you get the arizona united states supreme court modified belton's bright line rule such that the officer search was no longer constitutional the question arose do we throw out the evidence now and the supreme court reason that under the facts of that case where the officers had followed then binding precedent quote to the letter quote scrupulously where they were quote in strict compliance with binding precedent there was no deterrent value served by suppression that's not what we had here we do not have a bright line rule the issue was undecided well they'd have had qualified immunity feed sued them would they not i think it's a different analysis i don't we i mean the because the point of qualified immunity is was there clearly established law that i just  i've always in my head thought that the good faith exception was a shell that was analogous to qualified immunity i think there's a distinction i think in qualified immunity whether the constitutional right was clearly established i think here you ask whether circuit precedent specifically authorized the government to do what it did and that's from david that's the whole point about i mean that's sort of being consistent with the street the evidence didn't need to be suppressed over a vigorous dissent because they were objectively reasonable i would look at that well well i'm maybe leading you down a rabbit trails i really do think that the analysis is as straightforward as i've said it out i would you agree there is no case on point that says they could not do this i agree that there was no case they said you cannot do it but there was no case that said you could and i do think that it would be unreasonable to assume that that beeper case or any beeper taste before authorize them to survey anyone with a beeper or die if she was twenty eight days excuse me it's a green just only because of the length is that right i think that the the link is what the duration is what is egregious is trying to tie down guys we do have a second motion to suppress that we've addressed i hope thoroughly and it's a very fact intensive inquiry i would be happy to rest on my briefs unless the panel has questions otherwise i will save my that your position is that it becomes at some point the probable cause or reasonable suspicion becomes stale because the search is too long my position is that first of all that the t circumstances did not justify the first search in the first myth the very first myth but i feel more strongly that after that first drug sniffing and after they searched the entirety of the truck the truck bed the passenger compartment the undercarriage probable cause dissipated and at the forty five minute mark they they were they could not bring the drug dog back out and do it again that's my position this case involves a p s and i let me start with the the statement of the case is agreed just because of the duration and i want to address the duration during the time that the beaver was on its fifty two days from from june ninth until his arrest and in total  seventy three but fifty two of those days the agents had teased three arteries ations on probable cause to listen to the conversations of mr berry and also to get the cell phone g p s location from that in agent so let testify that they used that much more sophisticated cellphone data to track him on three on three instances he did where they say they monitor him going to houston and coming back and those are june seventh june eleventh or twelfth and july first and they had this false sophisticated t three authorization and as to what supported that our direct the court to two things because it these have a lot of background that you don't see in our brief the first is the wire  he three requests for may twenty fifth and on a second phone on july twelfth and you'll find all of the  authorizations in the record at pages one seventy forty five twenty eight in the reason they're important is first off they show as of may twenty fifth all of the facts that supported probable cause for those two threes at that time as and second they also show that the whole extent of the investigation starting with the c i that who said that already recorded setting up a meeting in april twenty sixth so you can see all that and i don't want to go through it but for seventy you know in detail because first my point is for seventy fifty two of the seventy actually dealt with the problem not with the g p s yes your honor but it but you know it talks about the pen registers and all of the other information that they had on him which supports reasonable suspicion under michael but it also should then shows that they use the both the g p s on the phone and the actual content of the call's to monitor much more precisely what he was doing and what he was saying and you can see some of some of that at pages twenty seven ninety two to twenty eight forty two of the record which is on the d e a s six's and the summaries of the calls were made during that time and they had a lot of phone calls they had the g p s tracking him on the phone there was saying to and from houston on three trips that's what they relied on agents so i testified that during that time the g p s tracker was a backup in case the phones failed they that so there's fifty two days where the agents went and they got teeth reauthorization on full probable cause on on his tooth phones fifty two of the seventy three into play does that mean they did not use it or referred to it or are you just saying it was superfluous during the period of time your honor i haven't found anything in the record that says here and i didn't so i justify the last three of them they never came into play at all because they were they were saying we need to suppress and he's like well there's we use the title three days on the i mean there was never a time when they were without the title three coverage so the only time that the tracker was useful to the agent since the since the two three phones didn't fail and august twentieth when the arrest was made because the geo finance alerted officers that that mr berry was on his way to houston again consistent with the pattern and i l to the pattern that they had seen in the prior three g s three observed and they use they used to tease free information to treat your physical surveillance and after all three of those searches there were trash i mean i'm sorry all three of those trips that were authorized by the g series certainly they were fully authorized by judge jamie and again you can see that in the authorizations and orders in the record and day they had they had the three trips that wore the same him oh they they physically observed him you know leaving being in houston coming back and trash tools after the after he dropped mr berry physically dropped something in the trash or he drove up to the dumpster and mr haines drop something in the trash does the last two trips trash pulls right after that show that they that he had hero and pat thrown away here when packaging that had her residue and it was consistent with between a quarter and one kilogram quantities of heroin in the packaging i you can see it in the dash cam when he when he drops out the two half kilos the government maybe would have not used any evidence from the truck or could they didn't need it because they had not the fifty two days of duty three other information they would not have needed it for the fifty two day because they had so much other information and you can see that doesn't give me so the suppression is irrelevant so the government can do surveillance oh no no  planning to offer the evidence or rely on it but you clearly didn't realize oh no your honor i wasn't mean to say that i was going to say that during the fifty two day period they had lots of other things that were much more precise detail than what was it was only after july thirty first when they were seeking another two three and when they had to find the telephone in the pen registers and that's not that's an agent so it's testimony that they were seeking it did the agents monitor it will hear it there was no monitoring the testimony was that the only use of this g p s tracker was to set up and agents were monitoring the software they would know that he's on his way to houston by an e mail alert because he passed two points you know last week they said was more of a minor one and then let charles they know he's on his way used and all they use that far edge and so it's said the only purpose of it was to trigger physical surveillance so when that went off on on the twentieth and  he was on the way to houston they calls used in inconsistent with the prior three trips two of which produced heroin residue directly linked to do it directly linked to mr agents acted both consistent with michael and that this whole use question and i was in was more limited then and is present and also that the geo trackers were of a much more limited it's more like a beeper than a some sort of auto survey i mean you know real time surveillance absolutely your honor  this case two experts testified at the g p s hearing about the difference is that there have been a problem i mean would there been a problem had it been brought under preexisting fifth circuit law and i'm sorry had it been a and had they had it continuously you know tracked wherever he was going and they could log on and so you where he was set to get any given point in time would that have violated  also found her in packaging there so at that point they had a trip to houston plus a c i tear up conversations recorded on various other co defendant so there was some acknowledgement within the fifth circuit the g p s tracking warrantless g p s tracking was ok and that was based on michael right yes your honor and thank you for getting me there  i haven't had my coffee yet the whole question in this case again as recognized by opposing counsel is under davis whether the agency acted in good faith reliance on circuit precedent at the time and i would include the supreme court in that and the answer is yes for two reasons one is they acted consistent with michael and to towers where they were at the agency would triangulate the information on a piece of paper with a pin like we used to do but they could still get real time on this just like they said constant constant surveillance so so both based on the reasonable suspicion and the fact that this the use of this there wasn't any monitoring as your as your honor pointed out it just sent a alert if someone was was what was watching the software that there was a he's on his way to houston and then the second point that michael's co counsel just reminded me of is first we have michael in nine hundred eighty one saying reasonable suspicion and they had it and also in a public place they had that also on public roads and just laws it talks about that but the second thing they had as recognized by this court was not a search on drugs a fourth amendment so there was supreme court authority post michael that use of a g p s not a search and your hon apologize we started michel for that in our brains we also cited her in her nando's and hernandez recognizes it actually came out in the middle of the of the the monitoring the  that this this was all going on and so that it's sad that the the he did say that the device was was limited but he said that  that he it was his understanding that he did not have to get authorization that at one point he had told legal counsel that he was doing  the tracking not in particular mr varies instance but generally and counsel had not indicate there was any problem whatsoever with that also the in the record is the u s attorney's statement that we did not require any sort of formal notification at the time and that district court credited this she heard in solis testimony and she credited it  credited it and found that there was no policy so let me just ask you i mean you haven't mentioned the andris case which seems to be pretty clear cut even assuming that a fourth amendment violation occurred and suppression would otherwise be appropriate the evidence should not be oppressed suppressed in this case because the officers acted in reasonable reliance on circuit preceden and then and cite davis and michael and you know although it's in the context of plain error it's pretty clear and then the and and then the tenth circuit has absolutely agreed with that in a case called u mitchell which came out just very recently june thirtieth two thousand and sixteen is your honor i apologize for not mentioning both of those cases they are very supportive and the andrea's case actually  and there's no way are at all and that is no error part of andras is what's applicable here ok well we have your argument i think thank you your honor thank you was arrested the trash pulls she mentioned were in june mr barry was arrested in august so i'd like to explain what happened we had two three wiretaps beginning on may twenty seven they ended as she stated on july thirty first the g p s device was installed on june ninth and it continued until august twenty and they were relying on it exclusively on that day to follow mr berry and pull him over and conduct a traffic stop that ultimately led to the discovery of the evidence that they would have used against him at trial and that we want to suppress here so that does the time table they were relying solely on that g p s device at the time that they arrested mr barry now they mentioned knots i'm very happy to address united states we knots they never once mentioned knot in their brief they never mentioned it below i went back and checked nots is a beeper case in that case the government went to the vendor of some chemicals and said hey we've got a suspect can we put a  beeper in a box and would you sell it to the suspect and we'll use it to track him that's what happened the government tracked him to a cabin out in the woods this case went to the supreme court the supreme court said under these circumstances we don't see a fourth  violation but the supreme court and not expressly cautioned that we do not decide whether different constitutional principles would apply to a more sophisticated surveillance they don't even know about g p s devices of the time but they c see that technology could be used differently now nots does not decide this case but you don't have to take my word for that the united states supreme court in united states feed jones said three separate times not does not decide the case before us and jones is a lot like this case that our case is worse and the fifth and the tenth circuit says under these circumstances and even assuming the officers in our case violated the fourth amendment by failing to obtain a warrant we can attribute to them no more than simple negligence otherwise we'd have to condemn them for conforming their behavior to the vision of four other four rather than the voice of one circuit court because four circuit pretty jones had held they receive no search or that it was reasonable to attack to attach the g p s tracker yes your honor and they cite this circuit's opinion in hernandez correct and i think that they misinterpret this court's opinion because this court's opinion in hernandez ends with the comment we do not decide that case today that's that's how hernandez ends i don't think  hernandez supports the tenth circuit position in their case or the government's position in this case and to return to knots again this is the supreme court this is just quote the limited use which the government made of signals from this particular beeper and quote and reserve the question whether quote different constitutional principles may be a place to dragnet type law enforcement practices of the type that g p s tracking made possible here justice sotomayor is concurrence knots does not preclude the conclusion that g p s monitoring in the absence of his goal intrusion is a fourth amendment search not to reserve the question whether different constitutional principles may be a political to invasive law enforcement practices such as g p s tracking justice alito the bieber's you nots in cairo merely emitted periodic signals that could be picked up by radio receiver did not specifically authorize the government to do what it did here and one last note on andre's it was player review as we said several times but it did not involve the duration of