self what i mean by additional cell phone is that the conditions of mister nichols supervised released require that he identify and register all you cell phones that he defend it we have the district court and the district to let the district court made findings that you have to establish are clearly erroneous are not that's absolutely correct right that's absolutely correct and to that and we had  release mister mcgill falsely testified or falsely stated to a political for that he had now looked at any child pornography or other sexually inappropriate williams fails to see properly record to a failure of the the of the polygraph exam so where there is a contention that mister mcneil failed the polygraph exam it's almost contradicted by the fact that at no time at no time prior to this being said they raised at the very end of the  findings that was sort of explore fries and i think all the parties minds that there was there is a lack of evidence or at least a substantial contradiction in evidence  which would render a finding that mister mcgill failed those polygraphs unreliable and i'm happy to address all those prairie patients because as they said that was one of the one of the biggest causes of concern to at least the defense is that these are being presented as corroborat the government's initial position was that the fund was seized because it was in plainfield in order for in order for an object to be in plain view and in clear sight in other words it has to be clearly identified as contraband you don't have to go into a unit to search it if it's a bag of marijuana it's a bag of cocaine it's one of those objects that would but allow for easy for easy identification as some sort says turn of contraband in this case we do not have that what we fact it became a subject of some litigation they had mister mcgill had the phone but that was not in fact in violation of his supervised release conditions because those depressed release conditions did not call for him to get rid of all things that were unknown to probation fact that evidence in that case shows and a previous instance that mister mcgill has telephone that telephone was discovered by the probation department and at the time it was discovered you may please the court i name is richard roth and i represent the united states district court properly denied defendants motion to suppress by the time of the seizure of the unmonitored phone on february rd two thousand seventeen the probation officer knew the definite previously been convicted of possessing child pornography on an electronic device if it had numerous violations of his conditions of release including two related to cellular telephones and defend it was pornography the district court correctly found that the unmonitored phone was contraband in plain view and the probation officer had reasonable suspicion to seize the phone at the scene or was inevitable now the probation officer acted in good faith i'll begin my argument by focusing on to me can i ask you one question just at the based upon your introductory remarks the reason that you're saying unmonitored phone as opposed to phone right is because you're doing that deliberately and the reason you're doing that is because of the condition a supervised release that prevented or that required him to consent to the installation of monitoring equipment or monitoring software on any computer which he had access and your position would be that a smartphone qualifies computers i think it's the understanding of both the defendant and the government and the district court that a smartphone qualifies as a computer under those circumstances and it's certainly the government's i don't know your your adversary was just arguing that what what in the world is the problem when the probation officer sees a cellphone there's no problem with having a cell phone so i don't know that you can agree to that i thought your position was it's not any old cell phone optically it looks like a cell it looks like a smart phone and him have yester phones is a  problem it's the government's position that having a smartphone is a problem it's not identified to the probation department pursuant to the computer and internet monitoring program which require the defendant to identify all phones capable of connecting to the internet that they could be monitored and in this case as the court observed there are two phones there's an identified phone a smart phone that the defendant had identified to the probation department which probation was monitoring his internet use to prevent  and any issue or get regarding child pornography in excess of sexual exploitation materials and then there's this other phone in a smartphone observed by the probation officer on february rd two thousand and seventeen a probation officer has never heard about this phone before from the defendant and attempts to block the phone were suspicious yet a drastic change in demeanor when he offered a nonsensical excuse for possessing the on monitor phone and the nonsensical excuse was that the phone was simply for charging the other  course as the district court observed and as the probation officer testified at the suppression hearing the unmonitored phone was enclosed in a case which simply wouldn't be reasonable if it were simply for charging a battery so all these factors at the time of the probation officer to have reasonable suspicion that the phone itself either was contraband or was involved in crude and criminal activity gave reasonable suspicion to seize the phone so the possession of the on monitor phone in and of itself the government's position rendered it contraband in plain view in light of the computer and internet monitoring program and its requirements are the district court found also that the totality in circumstances well laid into the possession of the phone the prior violations defendants criminal history  possession of child pornography on an electronic device all those factors combined with the friend defendants in face of conduct and lies on the morning of february rd two thousand and seventeen lead to the reasonable position of the probation officer that the phone was either contraband in plain view or simply that he had a reasonable suspicion to seize it because it was engaged in criminal activity so the possession of the phone a long winded answer judge got or is that the possession of the phone was problematic on a number of levels because it hadn't been identified and wasn't being monitored and then defend his conduct on the morning led to reasonable suspicion on the part of the probation officer sees that with regard to defense counsel's argument that the prior violations simply aren't relevant because they didn't lead to further revisions of defendant's conditions of release i don't think that's the appropriate inquiry here the appropriate inquiry is whether or not they lead to reasonable suspicion on the part of the probation officer so the probation officer knew on at the time of february rd two thousand and seventeen as he goes for a home visit of this person of his probation or has been previously convicted of possessing child pornography an electronic device you know has a number of things he knows he's got this prior conviction he knows about these prior violations including possessing pria previously unmonitored phone and the probation officer had to inform the defendant he could not possess that phone because it could not be monitored by the probation department it was the very reason defendant can possess furthermore he understood that defendant had twice violated the conditions of release by downloading sexually stimulating materials this was a well known fact by the probation department and it led to further scrutiny and he knew that there were two failures a polygraph tests in the past year so whether or not any of these individual lies violations led to a revocation or a lead to amendment of his conditions of release there were background factors in the mind of a probation officer as he encountered defendant that day and then observed as a base of behavior for her it is nonsensical explanation for possessing the phone and lead to reasonable suspicion that the phone was contraband and that the phone was possibly linked to criminal activity unjustified stranger so unless there are any other questions from the not make those statements and to the government characterizes those statements as confessions and we are of course disagree with that characterization but here is the most enclosed part the most her part is none of that matters not those matter because they took him to be after the phone was seized so that determination that this court is whether or not there was  either probable cause of reasonable suspicion in this case which there was not or whether or not there was some exception to the rule requiring reasonable suspicion and again in this case  i see my time is up i think the court for its time