the honorable the united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be heard god save the united states of america and this honorable court court is in session i wanted to focus today on the deficiencies in the search warrant and also the admission of the text messages that constituted improper prior bad act evidence with respect to the search warrant as you know of course a search requires more than just probable cause that a crime has been committed but there must also be probable cause that in numerated evidence of the offense will be found in the place to be searched which is what we call the  respect to the nexus to the phones the trial judge took the position that it would be obvious that a cell phone recovered in the home of somebody who had appeared to be actively engaged in drug dealing would contain evidence of drug dealing and i think the nexus requirements are stricter than that in the judge's analysis failed to account for the vast privacy interests that are implicated by a search of a modern cell phone so when you consider rightly versus california together with the nexus law and most particularly the united states versus roman i think it becomes clear that the judge made the improper ruling with respect to the nexus now  hearing i say i really don't see anything in the discussion between prop counsel and the judge but even begins to resemble argument i think that the defense counsel's memorandum that was submitted in support of the motion to suppress in the court below it does st of all reference the entire relevant portion of the th amendment in other words affiant didn't describe and now i will quote he says one xli the affiant did not describe how or why drug dealers use cell phones nor did he describe what evidence he expected to find in the phones which would pertain to th disk distribution of controlled substances and that's are a number sixteen and then at the oral argument he again notes to the judge that and now i will quote again quote part of the issue is in the attachment that describes the evidence that they're looking for it's entirely it clearly was a mistake it's entirely devoted to searching cell phones for evidence of child pornography so there is no description as  to in a drug case where they're describing the procedures that they would be using and the judge goes on from that and that's end quote and then the judge goes on from there and says well maybe it's overbroad but here are the reasons that i don't think that that  matters in this situation and then the argument moved on so i think it's remaining thank you so i think that even though it is true that he didn't separate his argument into one section that dealt with nexus in a separate so do we know from the record what was just a cell phone or a smartphone i think it's described as a smart phone and we know that it had photographs and other end video on it so i think that that is clear that it's a smartphone but whether or not that evidence was put in front of the magistrate i think they were described as to gee i would have to go check to see if they said to l g smart phones or to g and then they just listed the type of phone that it was and do we know where on the phone the search was that you think a search should have been someone found gilling drugs with two smartphones next to them i'm sorry can you say that again he asked me where where did they search it think they shouldn't have searched well i think there was no limitation on where they could search at all so presuming the question counsel wou answer the question so well they searched in every way appeared to search the entire front right so i would say that the areas that they searched that they couldn't have searched would include the photographs but i would i would say that you know when when there is a case where the office or the search is beyond what the warrant allows for then there is case law it's it is you know we can just d for a search of the photographs and i think that's just the problem because the warrant in the after application for the warrant didn't describe why it would be that you could expect to find  evidence pertaining to drug dealing in say the photographs or really anywhere they were searching for and i think when you get i think what's important about riley is that it says very specifically look modern cell phone contains so much riley i wonder if riley actually cuts against you because riley we know you could get a one in these circumstances you can get a warrant to search the home for drug paraphernalia photos records and the like riley seems to make clear that the phone is even more likely in the home to have lots of stuff on so i think that increases the privacy interest which is why we require a warrant when you then come to nexus it seems to cut against you right so so the idea is that because because this modern cell phone or a smartphone contains so much information you can infer that of course it's going to it's going to have something but it would be incriminating in there somewhere but i think when you look at the nexus law and this is where i think united states versus wrong is important if the cell phone has more  said you can't just make that assumption but because somebody is a drug dealer they're going to hide evidence in their phone even though there are some surface appeal to that like of course sometimes heavily involved in the drug trade is probably going to leave some evidence of the dealing at home you have suppose he had a large file cabinet can you get a warrant to do it allow you to search the file cabinet for records of drug transactions well i think what roman would say is if you want to go and find the filing cabinet and look through it you would have to have some some evidence something that was more than just an assumption that he was hiding some evidence of his drug dealing in that in that in his home i don't see why you think rome and helps you at all factually it was a very very different case judge chaotic and i were on that case w judge stalled the author hearing judge there all of the evidence pointing to the drugs actually and paraphernalia and dealing being located some place else that is not the situ way shewn here well i think that it's the same in fact there was the police had information that drug dealing was going on from this location which was his home but i think what's important to me about rahman is it says just because somebody knew someone it doesn't mean you're going to find evidence of their criminal activity there rebuttal did you want to say something about the your argument it was an abusive discretion to allow the text messages yes please thank you your honor and so i think that the real problem with the introduction of the text messages was that it's very difficult to distinguish how those prior text messages in that we're talking about the ones that are from march in february not the ones that were specifically how that plays out in this trial when the prosecutor when you have a situation where there is so at least some there was evidence that protests perhaps price in london possess these drugs there is some issue we need to be i'm suggesting much better understanding this record will give us the way in which information is store smartphone  the ways in which access can how one can get access to that in a very specific way without really generally through the phone the problem is the way that this case was developed below is we have nothing in the record nothing in the record that allows us to understand those rate technical issues we have some representations in your reply brief but there are certain words you can be used to to try one of the problems well i still think that the facts that the trial attorney put in front of the judge were enough to raise the issue that clearly this warrant was overbroad clearly this one had described information that could be could be taken from the cell phone that had nothing to do with the case at hand remember they made a mistake i'm sorry counsel let's leave out the child printed graphy that the warrant was not sufficiently particular and i think that on these facts the trial court the trial attorney made a representation that these facts were overbroad the judge rejected that but i don't think  argument which is to say that there was no the argument is there was no insufficient evidence put further that these particular phones were used in the defendant's drug dealing activities and the nd argument is a particulary argument to the nexus argument i focused the court's attention on its recent decision in adams which was another case where a bunch of cell phones were found in a car and there was no specific evidence available officers that those phones had been used in the drug dealing but all of the attendant circumstances suggested that drug dealing with going on because of the defendant's prior record the  farms well here we have a situation where the phones were found in the apartment where the drugs were located on explain large amounts of money relocated drug preparation paraphernalia d was present and cell phones and so for the same reasons you can see i think it's fair to say in any event but in also an african statement about the connection of drugs insult loans that under the problem custom entered that is enough to look in the phone for drug dealing which is what distinguishes it from this room in mind of cases which merely hope that if all you know is some of the drug dealer and they move somewhere you can't search their apps you need something else but here we have the something else the phone done there co mingle with the rest of the drug dealing business equipment and so in my view that is an issue and to establish next under this court's  here was not made as to whether there was any possible way of narrowing the officers looking at the cell phone to find da recently wrote an opinion and case concerning border searches which drew a distinction between what the agencies could look at on whatever was visible on the screen of the cell phone and then information which could be obtained it merely by hooking and  o different devices which then had prior greater search capabilities now i know that the record does not tell us they has but i have been wondering about the argument in the reply bri i bout the search capabilities and whether and as a matter of technology that would have  celebrate a dump of what's called a dump of the phone is made and it is reviewed so in this circumstance you know what's difficult i think and i think what john i think it was he was talking about the th circuit is how do you know where on the phone you're going to look because i think if you are suggesting when you're talking to my colleague the question is you know pictures right you can't you can't type in drugs that's unethical to bring up a picture but as we know many times defendants tape pictures of themselves with the drugs it's very powerful evidence whose phone is it pictures tell us so there are places in the phone that just word searches won't work i think it's  so let me talk about riley in the english it into a was one right was about privacy concerns with phones but the problem in ronnie was a surgeon said in to arrest in the government's position was well we took an incident to arrest we don't really know what's on it but we can just rummage through it in the supreme court said no you can't there are privacy concerns here we want you to get a warrant because we want you to prove to a judge that there's a good reason to look at this five and then what happened here the cell phone until we find something that is incriminate me that that as articulated an odd way and that is what the group says articulated in that way that just like if you think the cell phone as  if you're going out if you're using the phone and there's no evidence that that happened here to access rd party places but when we say we can search your house for drugs and drug paraphernalia and drug i mean we let you search the house and we let you look everywhere in the house and so here's the phone and the evidence here if you look at text messages in pictures that's where the evidence came from at least those are places you would look now i'm i do agree with pez this is potentially an emerging area that's totally not raised in this case and i agree with you but i really believe there's an emerging question that i don't think rightly answers but i think what riley concerned was this you can use the cell phone as a platform to get to other places on the phone but the phone itself to me still seems like either the house or the file cabinet or the places where you keep information there's no way the government can know what did you keep that if you keep it in the notes d section of your phone did you keep it in the pictures did you keep it in the text messages you could keep your drug ledger in any of those  drug activity that's right you can't just you can say i'm here on a drug warrant and i'm looking for you know bank fraud evidence no you cannot do that and i don't think we did that here because i think this warrant was limited to drug habit and i think the harder question is how do you you know we're if you're limited to drug evidence how do you know where on the phone the drug evidence will be before you've looked at the phone and that that's a problem that is a problem and i think that it is like the house and that way you can look in any logical place where that evidence would be if you don't know if if we declared it was a particular place like the nuts function or something that you couldn't do have a problem here in that the attachment referred to child pornography incredibly sloppy we've seen this before from new hampshire in fact we've seen from i believe federal warrant and new hampshire how does that play out and next case though you have seen from a better word in new hampshire i can say in going to be used to look at the phone and i'm not defending that as it is a good practice every document i believe should be particularized that warrant that was a mistake however the warrant itself talks about we are looking for evidence thank you attorney frame at this time if you could do your audio and video and attorney prox if you could reintroduce yourself on the record and then proceed benjamin brooks your honors on behalf of mr bernard lindsay  so i just wanted to point out a couple of things you know the government says that you know we looked in for instance the photos because you know sometimes we know that defendants take pictures of themselves with drugs well that's exactly the kind of information that could have been included in the affidavit of the warrant to describe and explain why they were looking in various places the cell phone it wasn't and i think the point here is that when you look at the affidavit  whole it really doesn't give any reason for searching the phone for the full phone or any description of what it was looking for except for this assumption that of course she would find some evidence of drug dealing and i think what the matzos requirement says is there has to be something more than that you can't just rely on those kind of it some chance and in this case had there been evidence that mr lindsey was seen on his cell phone when he was doing these drug