awfully obtained back in two thousand and fifteen by a in eighteen u s c section two thousand seven hundred and three d order that was some three years before the supreme court handed down her printer which of course held that to obtain such information the government must have a search warrant but the district court was ultimately vindicated by the supreme court and carpenter from the previous rulings that he was and of course that issue had been before this court your blameless ok nevertheless the good faced exception should apply here because the officers acted in an objective plea reasonable reliance on four different things that courts have developed over the years st of all they relied on the statute the store communications act which has eighteen u s c twenty seven dollars a three d and they also relied on binding a poet president from this court which is the case we refer to were called in re application which was handed down back in two thousand and thirteen and there are a lot of there have been many other circuit courts of appeal they have also upheld the constitutionality of the law including carpenter itself right yes you could clear up is there an issue with regard to davis's phone and clear to me in the briefing because i don't understand if that was actually argue something about davis's phone and if so how would mr beverly have standing to argue about davis's photo or is that not part of this case i don't really think it is and here is why i dropped  just a brief footnote about this in one of his he posts several motions to suppress and in one of them he did see he did say he wanted to suppress davis's information that's well now it wasn't discussed at the suppression hearing there is nothing in judge chooses order about davis or his information so i don't think it's really your lied upon you don't believe the court made a ruling about davis's i do not there is nothing in the end davis is phone itself had the number for beverly yes it did and of course we're talking about two different sets of information from the phone here there's a subscriber information which is just who has the enable on the account in the address where the bills that and secondly it's the towards which are just the numbers called from that phone and dad dad none of that information information give and it just applies to records of your physical movements and towed records subscriber info has none of that sort of nd factual question that i'm sure has to do  with what was there a difference between what was presented to it was judge johnson and what was a printed suit into judge stacey or was it exactly the same thing and they just ruled differently i went back and  pulled all of those both of those applications the only thing that is different about the search warrant is that they added a codefendant statement that basically what happens is they get to they jeremy davis he leaves his palm print in one of the banks they trace the print to him they go in talk to him at st of course he says why don't we think about this but when they start talking to him about the fingerprint he says ok i did  and these people did it with me and he names beverly and he names a rd guy named papers so there was an in additional support that was additional support the co yes yes it would have changed it's does it's not just going well this person's on criminal what what was the basis for do we know why they waited to get a search warrant you know if they if you say they could have done it back then why are they why did they wait i'm a dad i don't think that there's anything you can impugn necessarily for them waiting but why did they wait well they simply did not realize that they needed a search watch they knew that they could at the time it was understood by the law enforcement community and everyone that if you wanted this type of cell phone information you went you community that the store communications act to do requirement a warrant yes i agree not just mark but not this one i mean we had a we had i don't remember when our president came out on this question what year was two thousand and thirteen twenty seven a three d order with respect to certain c s l why certain timeframe when the government sought the warrant right after carpenter was decided in two thousand and eighteen maybe the same day the government asked for than that correct they did i believe the dates are a little bit different but they didn't we didn't get anything new wealthy anything got that so that's i guess that's my question you had certain information from the twenty seven aside so that couldn't come in under the good faith exception we have that we have to do a different analysis for that am i right or do you disagree i don't think so because all of the i think what happened was they they got the order for a certain amount of time and some of the actual actually i think it was beverly in one of their god their data with back a little bit further and they got over that with the st order so you're saying they had all the i mean we check in the record but you're saying they ha well we thought of the putting it in but we didn't want to we didn't want to influence this new judge by saying well but we already got a hoarder for this and there's also she also said at the hearing that this is not immediately in the four corners but one of the agents guess but that would have been partnered information that should have been shared in retrospect correct you agreement that i don't think it is pertinent you don't know getting turned up with you already had the information that you're seeking in the warrant th that seems to me very pertinent well i don't think that the probable cause depends on whether you had it before of didn't have it before we know you don't really have a cause i mean you could argue perhaps that you don't really have any need for the information if you already have the information and so there's not really a basis to get the information again now i understand why you would want to get the information in this format that you know is had doesn't have the issue that you have with it in the prior version of it but if that is pertinent to whether the judge is going to let you get the information again well again  i think there was a neat we had carpenter handed down that day they had a very eminent trial setting they were very worried the judge hughes would not apply the good faith exception and so straight clark did not  i just want you to be consistent because you're arguing that what you did was fine i think it was fine but our main argument we're not seeking to we're not seeking to recover what we got from the search warrant because it's the same thing that we got back in two thousand fifteen which is admissible under the good faith exception ok i want the press i really didn't think that you would argue that you shouldn't have that that prosecutor shouldn't to reveal that information i thought you would say yes of course judge that in retrospect that should be conceded or if you're disclosed because that is part net at this is troubling to me that you think that it's ok to hide that warrant is issued it's probable cost do you have probable cause to believe that the often sick heard this person is involved in this evidence you want relates to that no but you're supposed to disclose the relevant information to the court so that it can make a learned decision well again your honor i guess we disagree i think probable cause was present and i made that the issue it be issue is whether or not you're  overlapped even if we were to supply you agree that the information from january th to may th to piece of suppressed what difference does it make it makes does so why are we having this discussion at all well look i think we're here today because the district court's order called you all sorts of names all that like you meretricious lee applied for a search warrant you know you know it's pretty strong stuff this and what t um off evidently was you didn't reveal in the application that you already had it pursuant to a twenty seven to three order i mean that's why we're here the question is is that correct under whatever the standard review is is it look carpenter great you know now we know the law but we already had the information under twenty seven or three or we don't need to apply for a search warrant i imagine the government could have taken that position may be a risky position i mean you're saying who judge knew that it had already been obtained and that we were here because of carpenter and with respect you've mentioned that perhaps you might have had some doubts i don't know if you said this to a correct me if i'm wrong you met you might have had some doubts about the district court's willingness to apply the good faith exception direct ok so i noticed in the district court's order that he says at the end of his order use of the good faith exception would mean in essence that a statute found unconstitutional still also i don't know what that means i'm not sure either i pulled those out in basically you know both of those cases are extensions of the cats rule and so there was just you know karl said you can rely on a statute that's later  davis says you can rely on appellate precedent in that case it was belton i mean we don't have the liberty of relying on the sense in cases no that's not by the fs we have to rely on the majority and normally that does happen in all sorts of circumstances that rule new rule isn't announced and if it's not retroactive and it's presumed to not be retroactive normally and so that's not while it may seem harsh to those who have similar similarly situated that's the way it works and in hey b s in all other lots of constitutional issues yes it didn't work for mr carpenter either this externship found that the good faith exception apply because the f a minister a carpenter says we can't do it that way anymore now we'd like to get it by so much more because mississippi trial and we need to know what does it matter what does it matter because it let's say they have it under the will we know they had it under the administrative warrant carpeting comes out changed about game and then the government comes in and says on how when you're searching or otherwise that's not going to be admissible may not that that was a risk so what does it matter whether they tell the granted or not well i think what it doesn't i think the court's ruling is that they're attempting to circumvent what the trial quit wants to do they went to the majesty because the case was pending they could have  normal protocol in the southern district i mean perhaps we're not maybe i don't know for allowed to be aware of that that you go to the magistrate judge on duty for that month to get your any search warrant that that's a normal protocol i believe that i agree with that but what's normal in in normal cases is not normal here because we have a new case law just came out we have a case to set the trial before trial  such that they have to put make a good faith effort and in terms of attaining the particular if you don't see the information from the search warrant because you already have the information you could just introduce the pre or prior version which under the prior law was ok but incompetent comes out the carpenter retroactively means that that information doesn't come in now as though any court held that i do not have any information that oh it's clear here's my issue with that we are aware as to why they did what they did we know that they say it but we aren't in a position to observe as to what they did we don't in a position to know if in fact  would you agree that the information toll records information that's not location related would you agree that carpenter doesn't even apply that well i think it was narrowly  do you have anything further that you'd like to bring to our attention that the distance thank you very much the magistrate judge and then there's the district court anything else i just wanted to point out that  i'm he's arguing that that somehow the good faith exception doesn't apply because this case is still in the trial phase again there is no basis in the court of the case law to to make that distinction in fact i've cited a number of cases  counsel for mr beverley if let's assume for the sake of argument that the district judge whatever his name was is correct in saying the government did nothing honestly a different strain and counsel opposite said well there there is no probable cause what's your response to the argument that there's no probable cause to support the twenty eight well there is probable cause right but  had again the sequence of events was they got a hold of the germy davis the codicil he's not a codefendant in this case but he's been charged with other robberies he says the al qaeda got me i did it with all these guys including beverly  and another guy named weber's and this is a he told them he told them a lot about this is how he did it and you know these people went in the bank with the guns and other people were lookouts and some people were sent in earlier to scout you know he told them everything and not every single one of those details is in the search warrant but there is enough there to to constitute probably davis the civic lee say about beverly's participation  davis's cell phone information and they knew that he was speaking to beverly around the time of these robberies that was the corroboration of davis statements to them and then of course vaporous by two thousand and eighteen papers had said yeah you're right you got me and yes mr beverly it was involved in these offices as well and i think they could at the fact that his cell phone information also said that he was talking to beverly around the time of the robberies so that is probable cause to believe that