spotlight to focus on three to day one the seizure of mr burton's phones to the warrants that the police obtained to search mr burns phones and his home and then finally the good faith exception so turning first to the initial seizure of mr burton's phones the government relies on the edge and circumstances exception to justify that seizure but that exception doesn't apply unless there is something preventing the police from obtaining a warrant when they get an act the initial seizure and in this case there was and i think it's important to be clear about the timeline of events the incident at the grocery store happened on a friday afternoon mr burton spoke with the police by telephone that day the police did nothing over the weekend and into monday and then they called him in to the station and asked him to come in on tuesday in all of that span of time they took no efforts to secure the phone they didn't go to his house so if there was some great emergency in seizing these phones and freezing them in place they made no efforts to do so then on tuesday the meeting was started about noon and finished about twelve thirty year i'm sorry it was a suppression yes that's correct with respect to an exit in circumstances determination or kind of respect do we owe the district judges finding of exit of the facts underlying that conclusion or reviewed for clear error but the ultimate conclusion i think is a question of law about whether exigent circumstances actually exist in the district court get a feeling for the exits and say of a matter of listening to the various parties well the court is there  to see the witnesses and hear the evidence but that's all obviously in the record here and the question it's a it's an objective standard whether it was reasonable for the police to do what they did and to seize the phones without a warrant and what the police did is is solid evidence of whether they believed there was an emergency and it's good evidence of whether a reasonable officer wouldn't believe that that he had to take the phones immediately and the support for it with the with the phone there was the intrinsic characteristic of the instrument that it was subject to electronic transfer right and they had a witness who had identified mr burton had they not that's correct ok and so i didn't really struggling to figure out why they wouldn't seize the phone i mean if you could be immediately the information could be downloaded to another electronic device and they had a positive  ication of your client as the person who would take in that up skirt photo what would be the basis for not having a concern that the electronic contents of that phone could be with them once they had a positive id by a witness well they had that by friday and they didn't do anything they didn't take any steps until tuesday to actually seize the phones these so they certainly didn't act as if there was any ongoing emergency  burton in fact voluntarily came to the police station and brought the phones with him he had not destroyed them yet not throw him in the river and so what are you saying they should have done they should have gotten a warrant to take the phones rather than seize them without a the argument of existence he is a matter of the law well they certainly yes they certainly play together and so perhaps not literally at the exact moment they obtain probable cause if there's something actively preventing them from to address that because first of all no court has held that a phone is inherently immediately seize upon this no i understand i do understand and so the with respect to the other police activities first of all the ma available twenty four hours a day seven days a week the police officer is our work in gauge the other investigation until after the record is very clear after the seizure the record is very clear well i'll explain i am getting that a promise the the meeting when the seizure happened on tuesday and the seizure was complete about twelve thirty that that police report starts a page fifty nine of the record on tuesday the evidence was very clear the detect myrick did not get the other assignments to investigate the larcenies robberies until wednesday the next day so now i'm not denying that he might not have other duties but that doesn't mean that this can go on the backburner when they take someone's property without a warrant a chance to be interviewed you see what i'm saying i mean they gave him a chance to give his side of the store knew before they seized the cell phone i mean are you saying that they should have gotten a warrant for the cell phone on friday when they that and we've said in our brief that we're not saying that they have to act at the very moment that they're capable of acting but they can't unrestrainedly delay acting you're your answer the validity of your one feeds into the other if it was so emergent that they had to have these phones imminently then why wait so long in two additional days to get a warrant that's what makes it all unreasonable and it also is evidence that they that they didn't  unreasonable and in the cases where there aren't longer delays usually what's happening is there's additional investigation or the police are consulting with prosecutors and here my response to your question judge keenan is that the officers did bring him in to have an interview but there's nothing that they learned or the changed anything the or if you want to if you want the police to do a credible job that it doesn't exam time sometimes to prepare an there's no indication i'm sorry no no no i was just can say there's no indication that the officer was incapable in any way going to get a warrant any sooner and think about this this officer  of the phone he got a warrant to search the home i mean he's he's trying to play things by a bookies now and he's not trying to circumvent any of these sequences the need to get the independent violation so i'd like to turn to the warrants that the police obtain the warrant for the phone and a warrant for the house and the house in particular were drastically overbroad and not particular arised to satisfy the fourth amendment these warrants to search the entire contents of the phone or the entire contents of the home are general warrants and the constitution requires that they be limited to only  the time the place the type of data that they have probable cause for and not a general rummage about the phrase that use the type of isn't that isn't this type of also you're into account if we if you reduce if you were dealing with a different i you know let's say you dealing with a weapon or a gun or whatever you you you have a different kind of argument the the the difficulty i have with your argument is is is with the mobility of the data and the way it can be shifted from here and there and delete it and even assuming that so that would only apply if they had probable cause to search for digital files they were looking for photographs but the scope and scale of these warrants would allow them to look at every piece of paper in his home every piece of paper on his computers reilly could have a good look at exception for the warrant to search the house but in any event even before two thousand and eleven when these devices were searched the police knew should have known that general warrants warrant and follows a warrant rule be found to have acted in bad faith and the reason is police officers are not supposed to to they don't have the duty to second guess factor the problem is blessing these warrants would give the police every incentive to always ask to search everything and what we would end up with is the analogy i think of is the archer who far fall fires an arrow and search the police on which which they had a warrant for the police officer knew that this wasn't just a one off photograph as bad as that was that this they knew as a result of that cell phone search or search quite reasonably for a whole cache of illicit photographs well an argument simply your honor is that the warrant to search for that still has to be limited more than these warrants and i'm preserve some time if there's nothing additional at the moment but i don't know given our williams case is that you can address williams when you come back or thank decision that detective did in this case which is he wanted to find out what the defendant's version of events would be before he proceeded any further and it was perfectly reasonable for him to confront the defendant and ask him you know his description of of what happened and on the defendant's view what should have happened apparently was that before even hearing that a fun side of things the police should have gone and obtained a warrant  but it's kentucky versus kang leaves the police latitude to choose among different investigative routes that are what's the limiting principle that you will acknowledge when it comes one really important limitation another limitation is how long you could hold on to funds legally so significant that it was an employer issue if that was a phone that the defendant had total control over in terms of daily use and operation why is that legally sufficient i mean significant in the analysis right and we're not making an order i'm relying on that are you yes we are not in the sense of right well courts have recognized and i think whether or not cameron recall my whether it's the sparks or the bird guard i think it's the seventh circuits are going to pen and the reference that your interest you know  it issued that it's a factor in terms of the strength of his argument that the seizure of the phone on the scene was unreasonable and  and has evidence of a crime and here i would point out that not only is this an instrumentalities though it it was the phone that police had reason to believe was used to take the first photos but it was also containing time of the seizure of the defendant himself that ignalina that he had he was there at the scene that he was right behind the victim and that he had these phones with him and so they had a very firm it had those particular phones with him i don't know that the record said those particular phones but they that he had phones with them that that were were his work phones and that he was leaving time using riley what what what do we what are the limiting principles that we should be applying here because obviously you can't just see under exigent circumstances simply because it has digital content there has to be more a need to police have to have reasonable suspicion regarding the defendant but but what else do we say about that well i think that the   but you have the strength of the evidence you have the limited delay you have the fact that it's a seizure not a search you have the fact that it's his employer's phones not has you have the phone reveal multiple photographs that it did had that's right and that because that that to me was an important circumstance here because if there's been you know a single photograph as bad as that would have been it's not the same thing as finding is finding multiple photographs which reasonably a police officer well you know there's a an activity taking place on a larger scale that's right although and turning to the warrants themselves i think that it is very important that the police were trying to find out whether there were still edges of the victim and what happened to them by the time they were applying for and getting a warrant they knew that there was strong reason to believe that there were multiple victims and they were investigating a category of crime not a particular victims i mean they were just getting the victims this tension underlying all these cases and it particularly troubling the case like this and that is the defendant here is taking the advantage of modern technology and cell phone photographs to undertake in invasions of privacy of the most egregious sort i mean i don't think it's really possible to minimize just what an intrusive action this is and what an invasion of another person's dignity and privacy it is and he's using technology to facilitate that out and then he turns around and says oh no law enforcement can't take it take cognizance of that same and on the one hand you you can't take advantage of all this technology to and to to make these sorts of intrusions and them think that law enforcement cannot even take notice of the mobility of the technology and the advances of the technology and the mobility of the data the transfer ability of data in an attempt to get to the bottom of these th shore and i think you're on is raising a very important point and i think it actually ties back to something judge wilkinson was saying which is the adventures of technology have not led and acts are aplenty toward justifications for narrowing searches and so for example here the technology enables people to send images to many other people whether it's by e mail by text so there's legitimate reasons for law enforcement to want in a case like this to be able to done if i what happened to these photos this victim wants to know why this guy took a picture of me where did it go can you find it and you need to know because it's typical in a case like this that might be sent to the defendant's friends it might be e mailed to you know someone who's running a website those kinds of things need to be known so that's one is the just the transmission of the  images is a problem the second thing is and virtually every one of these computer cases you need to know who was at the keyboard who was operating the device and you know take just a hypothetical in this case it's an could say you found images but you know some other employee was using it and so you need some circumstantial evidence about the phone usage and what was going on in order to be able to isolate and determine who might be responsible for and i totally understand the basis for searching a phone but where is the nexus between what occurred the fire and fresh and to search it just the fact that there are electronic devices in the defendant says in the recorded statement he says that i was leaving the facility with my laptop and my blackberry and and so the police knew even if it wasn't  know that after searching the phones the police did not find an image of the victim but the victim believes that she had been photographed and it was reasonable for them to ask themselves where are these images  and given the ready transportability of electronic images and the fact that there could be multiple copies of images it was in that sense i think reasonable then you have points which is that computers would be naturally kept and the second is that images of and when he was noticing it no house they knew that he had come around to after previous denials that admitting that there were at least two women that he had photographed who were not his girlfriend that were up skirt photos so they knew that they hadn't found the victim's photograph and that he admitted that there were two at least two women that they had found evidence of how does that provide evidence to go into a wall so that provides evidence that this guy has has been doing this repeatedly and that they are nexis search at the home it does in conjunction with i mean again i two seven nine and it says any computer computer related storage device to include flash drives memory devices external hard right and the other important point i'd make about the breadth of this language is that it does say that you're right well and i think that's a key point is take this out of the digital realm somebody steals money from a bank in a bank robbery and you're going to their house courts don't say in advance that as one case put it you can only look  file cabinets in the basement they say you can look in the house where you know money can be head and similarly here the kinds of lake search protocols that are best u sed in this this area are ones that you talk about a manner of execution and after the search not ex ante limits on the search and the case cited and my twenty j letter russian has a footnote footnote one that lays out a whole bunch of authority on this point about limits on searches that are done after the fact and i apologize i notice carey says they've allowed us to go directly to the leon question right we do not need to run a sufficient amount of the day and we do not need to write broadly on the underlying breath or whatever of a warrant most of these things as your argument has pointed out of are very fact specific there are five or six facts here that might or might not be present as fair but we can go directly to the leon issue and in fact the supreme photograph and now has it within his power to send it who knows where it to the further mortification not only to someone to have this kind of photograph taken which is bad enough but there's the there's a there's a thought that this this photograph is somewhere in the defendant's possession and anytime it can be sent to any place and surely in these cases that has through enter in it's the mobility of all the stuff and the ability to inflict the invasion of people's privacy many times over the initial invasion and then the dispersion invasion and you know that's just  it can't help but be a part of this and i don't you know i know i don't i'm just just nervous about arriving to broadly on this because it's tab seems to me the specific facts here that we've explored about whether he owns a phone or whether he had a laptop or a blackberry mohammed phones or how many photographs were found in the search of the phone in the r warrant was great we don't have to say that we can just say that you know this this is sufficiently fluid and the whole area is sufficiently fluid as joe's duncan's question pointed out about  changing nature of all this technology and if the whole area sufficiently fluid hacking we expect a police officer to be second guessed second guessing the magistrate's determination that that this is this police officer is not a bad actor i wish all police officers were as conscientious in getting a warrant for searching the cell phone thank you very briefly i just have a couple points and i will address williams but i want to take the points in sequence first the government relied on continue versus king for the exigency argument but king clearly requires an that allows the police to proceed so turning particularly to the nexus between the alleged incident and the search of the home the reason in this case i think is distinguishable from williams and we've discussed that in the briefing and ultimately we don't think that williams is even good law anymore but even today even if william still stands the distinction here is that in williams there were threats direct threats written threats and so the police were allowed to search through someone's home computers for evidence not only that he made those threats but also what his motives might have been if they were true threats that were that the police had take action on but here though the  affidavit doesn't draw that connection and i will correct something the government said about the scope of the warrant was not just digital files it also listed printed photographs which would have allowed them to look at every single piece of paper in his home whether it was on the computers or not the it was really a rummage general warrant allowing them to search wherever they wanted and then finally the last point that i'll make your honour's is i understand the court's concern about the tension between  citizens privacy rights and the demands of the fourth amendment but respectfully your honor you use the phrase it's a one sided state of affairs the constitution is one side of the constitution protects mr martin's right the touchstone of the fourth amendment is reasonable ness to protect mr burton not the the overall question is one of reasonableness and that is a balance well and that's why we have the good faith exception which i it's it's rare indeed that we would say the officer had to second guess a judicial i'll concede that it should be rare but the point is there are going to be situations and this is one where the warrant was so broad that it was a general warrant and the