good morning good morning counsel the court and counsel i'm c c and lee elliott and i'm here on behalf of mr dorsey i would like to spend i think keep your microphone sort of toward each other thank you the better at them with my hand i'd like to spend my few minutes today and i'm going to reserve three for rebuttal talking about the good faith argument the good faith exception argument in this case this  court in the truck this is the case that comes to you after a motion for new trial had been denied and after a direct appeal opinion had been written in the case and in both of those instances this court last nick found that the primary basis for the conviction here was the historical cellphone data that placed mr dorsey in the vicinity very close to the shooting in this case the rest of the state's witnesses were had baggage were problematic had convictions were subject to impeachment the present use of this unconscious talk about that didn't carpenter talk about the cache of material that was seven days in total yes so how do we know this was three day it was th short period of time right so how do we know that the same outcome would ensue for three days worth of material i think the same outcome would ensue because beginning with kyle o the united states supreme court has been a protective of data that electronic data that invades privacy in a way that in modern times exceeds prior the prior abilities of the government to get into our personal affairs i mean but the specific ruling of carpenter does not cover the facts of this case the facts are different this case there's a shorter period of time i don't think the result would be any different but we don't know what the case does not dictate that outcome on its face i would respectfully disagree i think any intrusion under historical cellphone location data is a violation of the th amendment whether it's for the period of time it's not what copping to say that so that's why i'm not i'm probing the little bit as to whether or not we can unequivocally say that copper now makes this action unconstitutional because congress specifically relied on the fact that it was seven days worth of data we don't have that here we don't know what supreme court would have done if there were fewer days involved i would agree that the actual facts are not the same your honor but the i don't believe that the graf a man of the carpenter was the length of time it is the ability of the police to pinpoint the location in the movement after he left the area but why do you think the u s supreme court mentioned them at the time i'm not sure i'm not sure i think they mentioned the length of time because  it was a lengthy period of time in that case seven days but not a particularly long period of time i think or twenty seven do you can go up to thirty days of collecting data so to me if you look at the string of cases beginning with kyle o that talk about this kind of electronic data it's not the court is not interested in the period of time it's interested in the ability of the police to get into the intimate details of your travel and movement assuming then that carpenter applies to the actual facts of this case the question is whether in two thousand and eight the police well  the police and the prosecutors here had a good faith basis to rely on the statute in fact the government earlier this week submitted a twenty eight j letter which indicates that this court has now found that the good faith exception applies to carpenter and states in court today this is particularly true in light of the fact that in two thousand and twelve no circuit court had yet held the th amendment amendment appoint a bill to the c l s data first of all this case arose in two thousand and eight and in two thousand and eight i have now submitted additional authorities to show that the district courts were actually getting it right if you look at carpenter in the district court there were a number of cases around the country beginning in two thousand and five where the magistrates in the district court judges had been saying twenty seven three d is unconstitutional you've got to have probable cause here for the issuance of these kinds of authorizations so what this particular authorization was issued well in advance of two thousand and twelve i also take issue with the notion that only the circuit on the statute but you don't have any authority for that i have none but it appears that and you know there's an open question i think under the good faith exception to the warrant requirement about unsettled law but it's the what i'm reading here is akin to the hevia standard which is clearly settled the united states supreme court precedent and i don't think the police have to have that i don't think the police can say well we had a good faith basis because there was no clearly control in united states supreme court precedent it's an objective leave reasonable reliance on the statute well let me just say as a question here are you in motion of a neutral in this yes mr dorsey has a pending two thousand two hundred and fifty five in the district court that's been stayed pending this appeal thank you so also just so i know your position on the court case do you think that you can distinguish that court court today well he's yes i believe it's distinguishable because of the time they get you this court said two thousand and twelve no circuit court and had therefore that that it was that it was not objective reasonable to avoid the warrant requirement because others circuit court other district court magistrates and judges have found that that was in fact the requirement what do you think that the panel in the court case didn't know that i think the panel in the court take case was continue considering and an authorization that came after circuit courts had waited for the date of later decision in carpenter and the circuits were reversed it's an unusual situation so you have one minute and i'm going to save whatever time i had asked the court to reverse and really manned reconsideration of the motion with the historical thank you just discussed with appellant counsel back in two thousand and eight and i think court controls here there was a van lawful statute under the stuart communications act there is no disagreement here that in fact the government followed that statutory requirement that's not an argument here and we are confident that we have followed that  statutory requirement so defenses or the opponents argument that at that time that there was some other you know magistrate judge's orders which i looked at all the contrary to the match the judge opinions in the cases that are cited so we don't actually have a whole picture presented in the twenty eight dollars day letter as to all the various magistrate judge orders or the district court orders that were in existence at two thousand and eight we haven't scoured that and frankly we don't need to because court controls your honor brought up the question of whether or not the panel in court and i'm not sure it's court or court taste i'm sorry about that but whether or not the panel in court today would have known about these other opinions and you know in my humble opinion i would expect that the panel would have known would have looked at what was outstanding at the time when the panel issued its opinion just in march of this year having looked at all of those cases that cited to magistrate judge orders or district court orders and i think again court is faith exception applies and it cites to illinois v croll it cites to in fact another case that came out recently under united states versus hilton a th circuit case that found that even when the warrant is deficient or the order is deficient with no allegation here that the order is even deficient that the c s l i data is admissible under the good faith exception so i think in view of the court  findings it's dispositive with respect to this case and your honor i understand that you raise the issues regarding procedural defect we did brief that and i of course of want to be available to answer any questions you have around that but again because court is dispositive i'd like to be able to address any other questions that the court may have i do want to clarify because of the fact that there one day over a two hour period nine hundred and thirty to eleven thirty pm with a half mile radius of where the shooting occurred so extremely limited if there is an open question on your carpenter the only question is whether or not under carpenter with respect to that very narrow period of time why is that c s l data obtained in violation of the th amendment and i would submit to you it is a e it's not violate the th amendment and incompetent or it made it very clear in its footnote that it is to be narrowly applied the carpenter is to be narrowly applied specifically saying that our purpose today is to hold that act the thing seven days of a lie constitutes a th amendment search it says we need not decide whether there is a limited period for which the government  obtain an individual's historical see as a life free from a th amendment scrutiny or how long that period should be so company does leave open that question but i think specifically under this case with a two hour window for one day within a half mile radius that is almost as narrow as you can get and then in court take controls with respect to this situation so unless be able to assess his statements and decide they were not credible well the standard here that we would use of course is abuse of discretion and i think in this situation especially now with the court decision  shawn turner who testified under oath at trial before the same judge ok and then years later provided a written recantation he weighed all of the evidence the trial court to weighed all of the evidence that the we can take themselves or not credible and i think that the district court has that ability to be able to make that credibility decision and determine evidence for hearing is not necessary and i think when you weigh that again not just on these three witnesses there were many other witnesses including expert witnesses law enforcement witnesses and of course a c s i data so that when you weigh the bulk of that evidence against three people who later have recanted or at least claimed that there recant taking on a very limited basis in written statements the court did not abuse its discretion and your point is the judge had seen those three before correct and he so noted in his order denying the new trial specifically stating i was here i viewed their demeanor when they testified they testified under oath in front of a jury they testified credibly and when i contrast that against the written recantations again that occurred years later and i weigh that with the bulk of the evidence that was but at the other evidence not just these three witnesses i find that an evidentiary hearing is not is not necessary and that i think under an abuse of discretion standard the trial court did not abused his discretion  for the nd motion for new trial so our position is that the district court declined to address that issue in denying the order or in issuing the order denying the motion for new trial because it had only  that was back in two thousand and ten carpenter had not been decided in the nd motion for new trial in the opening brief and then in the government's responsive briefing carpenter had not yet been decided in the brief it had many opportunities to do that and they chose not to do it and in fact they've now pointed to many many judges opinions other cases where had been argued that the c s i a c s o i data w are just briefly in rebuttal what i hear the government saying now is that all of this was unsettled in two thousand and eight the government says well i can cite you two district court cases that went the other way and what the government doesn't discuss is whether or not when the law is unsettled does the do the put are the police allowed to rely on the good faith exception in leon and it's not objective y reasonable based upon the dispute over whether or not courts needed to use one for some it needed to use warrants to get historical cell phone data or could rely on the reasonable so if it wasn't reasonable then you don't get the good faith exception it's unconstitutional if one looks at page fourteen of the excerpt of records regarding judge last next order for the new trial here he does make findings regarding the troublesome witnesses in this case but he concludes by saying that the conviction was based largely on the cell phone tower atta and it is this use of that data again to deny the motion for new trial that is problematic here and mr dorsey had cited the court to the controlling decision and carbon council opposing counsel observe that there are no district court cases then find this information gathering unconstitutional you represented that there are district court cases so could you cite the district court cases that you're relying upon they are cited in my twenty eight j letter they are magistrate decisions but they are published well i thought you see a district court decisions well if one distinguishes they are not district court judges issuing the decisions they are doesn't quite magi