the court acting pursuant to congressional authorization and as commander in chief the president implemented the fourth amendment protections american service personnel through finally to set of rules that account for the special needs of military here the government violated those constitutional rules by painting warrant like authorization to search m from someone who clearly lacked already to issue such authorization that five lines of constitutional it's a constitutional rule your honor because it the military rules of evidence three eleven to seventeen implement the protections of the fourth amendment and that the there's a lot of evidence for that and if i could just highlight some of that i mean to delegate or to the military  that is designed to implement the structural protections of individual liberty and and privacy that are embodied in the fourth amendment those procedures then have to be followed and when they're not we have a violation of the fourth amendment and  generally speaking when we're talking about warrants or search authorizations that were issued without the requisite authority and so when mick lamb there was a federal magistrate who issued a warrant to search property that was so why wouldn't there apply in this case so that we agree that the good faith question is one that this court has to analyze we just think that the good faith exception doesn't apply when you actually is what you do what reasonable military police would not then do exactly what the s j s told did on this read the rule your honor one that's looked at i mean this is not t and those are all well is good well and good but we're the authority in terms of what violates the fourth amendment and i really can't say whether this search authorization was issued from reported it to the realtor police the base commander and there was clearly based on her report their subsequent conversation with her there was there was it's not as if he had no connection with this with this individual views his commanding officer back to san diego and point is it doesn't matter where it was whether it was a shoe from san diego of what mattered was that they had a reasonable basis for issuing and after this woman's report about what had happened to her now you have a reasonable basis now looking into it so your honor let me set aside for the moment the probable cause question i know some several of your comments sort of went that obviously we submit that there is a problem also but directing my intention or directing my response to the point you just raised about why does it matter which  two commanding officers in a particular case i don't think that's correct your honor i don't think that's correct because our position is not that the president was required under the fourth man to implement these particular procedures our position is that when the president acting as is already acting pursuant to us already as commander in chief and through the authority vested in him by congress under their article one section eight powers that that alternate regime  the authority that was actually best and so when we're dealing with the fourth amendment i mean if all that matters under the fourth amendment is that there is probable cause some reason to search then the war caused does no work and it's not our position obviously that the warrant cla applies in full force in the military but military service personnel are protected by the fourth member that is beyond dispute the courts this court said as much in rent in the government has never contended otherwise so if they're protected by the fourth amendment they're protected by the probable cause requirement that is in the military rules of evidence they're protected by the procedural protections than sure that if someone who is serving in our armed forces rules implement the fourth amendment protections in grizz be also this court recognized that compliance with military law is going to get you compliance with the fourth amendment and so there the court specifically cited the predecessor to military rule of evidence three fifteen and said that when authorized by commanding officer having jurisdiction over the place where the property is the search is about so the converse can't be true and i would also note that there are multiple other civilian decision emphasize that the procedural nature of the procedures employed by rule three fifteen are grounded in the fourth amendment they are the alternative to the procedures that are required in civilian context by the aren't clause but there are no less important and it it can't be the case your honor that there's just a freewheeling reasonableness test that goes only to what evidence exists without any without any that i'm delineating between rules three eleven and seventeen that implement fourth amendment and other rules that don't and the government cites cases that deal with other rules the robinson case that they cite one recent ninth circuit dealt with rules that were not implementing any constitutional protections and that's a distinction that i mean the government repeatedly cites the chair of justice stevens in that case said that the i r s his failure to follow the the i r s regs was not of constitutional significance but in reaching out holding it distinguished the bridges against nixon decision and it said that in that case those eye those immigration regulations were were the implementation of the due process guarantees and so when those and after this unfortunate occurrence and based on all of that not just commanding officer issues those oh you start yorkers donation i find it hard to believe that there is a search authorization they received by such from because they were clearly not commander shopping in the sense that they went to both the commander in virginia for the search authorization for the hotel room and  went to the commander in san diego for the search of the defendant's person and a cell phone and i think there is one also point worth noting that is how this kind of military search differs from a normal search that you would see and outside the military context which is this defendant was in virginia for service related training and of course his commander could order his return and so unlike in a situation where a magistrate judge maybe isn't in a position to dictate what people outside of the jurisdiction of the magistrate do this commander could order the defendant back to  san diego and at that point he would have authority over the defendant so i think i think that's just an illustration of the intuition here that this is the rule about commanders authority is not grounded in a fourth amendment of rape and what happened here don't seem to indicate that there's any any nexus right i think the nexus there was the search authorization request text messages photographs videos online contacts other information related to the crime and as the government argued below there was reason to think that potentially reasonable inference people take a lot of photographs that that could be evidence that corroborated the rape victim's allegations that she had been are hopping with the defendant and so the hope was that there would be up events of that nature found on the phone the might and right and the people take a lot of photographs these days when they're out doing things save those photographs rule but the requirements here on you know what kinds of evidence you might find that relate to the crime is one that's susceptible to reliance  case that was prosecuted honor if i could i'll start off by making two quick points in response to your comment right toward the end of my opening statement judge wilkinson and then i have your points as to why court should be very hesitant to find that this is not a fourth amendment violation so with respect to the question of whether this is just a technical violation or a technicality i would note that although the government cites the playpen cases the line of cases that they claim is related to that actually cuts in our favor as to the constitutionality question because for circuits including this one skipped the constitutionally constitutionality question went right to good faith but the third and eight circuits both found constitutional violations where there was a search with our narrow warrant that was invalid the six circuit master in the tenth circuit the big baker decision we cite also both are constitutional violations so we've got four circuits on our side on the question of whether searching without valid authorization granted in the in the context of warrant is a constitutional violation not a technicality second your honor just wilkinson  question i think why is this important as a matter of military law like what the commander in in california the commander in virginia i would note that military law has vested in vest a gate of search authority in the commander with fifty you see m j and it was in the army manual that preceded that so there are this is historically rooted in military law that in order to protect and implement the constitutional protections of service personnel we have structural protections like the warrant clause as a matter of military law so four points if i can as to why it would be a bad idea to say that this is not a violation or memo first there should be no doubt that if the court holds that this is not a violation of the fourth amendment it is creating a split of authority between this court and the cat in the eto in hofmann the calf explicitly says that these are constitutional violations and mix in chapel the courts an applied on the facts years then that would be a good option but unfortunately it doesn't because the facts are clear and the laws clear here there's no doubt i mean the government acknowledged this is it page one seventy six of the joint appendix there's no question that the that the senior commander did not have authority over the place and we're not dealing with some convoluted rule i mean it says there really certainly why it would or even if it should or whether it was authorized and it would be very detrimental to to say that this court is going to allow basically advice of counsel defenses in the face of a clear rule you can't just talk to a lawyer and then go murder someone i mean you have to that is the military law where you are no place else for the military police officer to chapel and mix are cases from the highest court of military appeals from one thousand nine hundred ninety nine through there are only two cases in the authorities supplemental authorities section of the manual on the military rules of evidence it's chapel and mix this is not some confusing or newfangled issue like we had a lamb this is a case where the law was abundantly clear and the facts were abundantly clear there's not a great answer in the record as to why they decided to get the commanding officer in california to do it but invite your  inviting shenanigans if you can just do something rip out practical consequence in this case where you know it just doesn't work we're talking about really in as a relevant factor but this is just this is this is just technically it doesn't it just has no practical effect on anybody's privacy rights or any kind of behavior that we wish to do to deter our own any kind of military officer or police officers that's running off the rails it has no practical consequence in terms of the kind of activity by military or civilian authorities that we wish to deter he's consulted with the judge advocate general he was the man scum commanding officer is was not unreasonable behavior and it is with no practical concept member if we respond in the conclusion you have your time is up but you may briefly respond with emphasis on the adverb