was used as critical evidence at trial should have been suppressed because it was seized in violation of th amendment rights this case is i don't want to start by saying this case is so much very recent jurisprudence about searches and we've been that cell phone done most private of things to be found in that place or thing the cell phone a family and it's from in that perspective that i want to look at the whole case i can't help but observe that indeed can be characterized as a family video it's probably not one ordinarily for family viewing but i do get your a strange characterization is much is when the agents would have socked the video from within the surface they had no idea with i'm going to find a family video character so when we look at forthcoming cases it's there's always this question of you want to start at the beginning and mark step by step through everything that happened until at the end you get to the evidence and sometimes it makes as much or more sense to start with the evidence and work backwards through all the steps that were taken and although we typically when we write about th amendment problems it in briefs of opinions i think we typically take that start of the beginning and take it through the steps approach and then we talk about it orally it sometimes makes more sense i thought it would make more sense here to start at the end and work backwards that is with the plain view but i think that might be where your question is pointing a little bit also is do we get to the picture to the to the video doesn't stability each that they can take a quick look yet for example you know there they're doing a recess warranted search of someone's computer and let's save the file says wedding photos i think the teaching of stability is that the agents can click on obviously they're not looking for wedding photos in my hypothetical but they can click on that front and if they see two or three pictures of a normal wedding then they should get out right but we shouldn't accept at face value the vile definition of what in fact so they get to click on it now when they click on it and they see some criminal right but stipulate also teaches that has applied to the cellphone as applied to computers i was to do is not a cell phone case but the computer case and the cell phone is is  computer is a mini computer and that's it and and it's a private communication device box it's it's it's a unique object but studio teaches is that we have to apply these two hundred year old doctrines and fifty year old doctrines and seventy year old doctors with factual sensitivity to these new circumstances and new technology and we don't apply the old rules mechanically in a way  folder exactly what my point was that a video is not a text document a video is not a document in a folder so worst how to apply studio to the video itself a new problem right our suggestion was and the videos are not kept they may be saved in a file structure similar to the way documents are kept in that you might go in the cellphone to my photos and then the photos may be grouped either by you or by apple thinking it's doing you a favor all the ones that were taken in a certain place are all the ones that appear to be whatever that wherever steve jobs or his people are doing to do your thinking for you but you don't have to open they don't open like a document they don't open like a folder when you see the video you're looking at what we call the screen shot of the opening frame of the video you already know when you look at this video it is a picture of a three year old sitting at a table eating that's like saying you come across a photo album and because of whatever photo was on the outside you wouldn't they call out let's assume you're authorized to look at documents collect at family events you have for example generally were to come across a photo album with with the screen tried on the outside if there were in the warrant authorization to see isn't search a cell phone it run that it's not going to parent over to the whole group of coconspirators well you don't know that for sure and that's the the agent of course would love to conduct a general search all the time but what the agent is authorized to search for by this is cell phones and its contents and i think we know from studio that cell phones and its contents can not mean all of the contents of a cell phone willy nilly but they can't mean that then we're going to step back a little bit to as to the cell phone content to begin with and the plane the concept of plain view is you are allowed to go in and look at some things but you come across something you weren't expecting that provides additional evidence right so sure you're asking us to look at that doctrine as to the the video here but you haven't made any challenge to the scope of the search of the phone itself on appeal i thought we had thought that was exactly what we're saying with and this is the one step back now we're taking one step back to the three steps that still talks about the three factors about plainview is what did that all warrant authorize a search for the there is st of all no probable cause anywhere in the warrant for no mention of cell phones per se no particularized mention of use of similar electronic devices make an appearance in your brief and you just jump to a plain view argument and then i'm not sure i understand how plainview comes into play if you haven't made a challenge to the scope of the search of the contents of the phone and in contrast to probable cause to seize the phone to begin with and i say i thought we had made that argument that the that what limits the scope of the search of the phone is the target of the war financial drug crimes might be found the cell phone itself certainly could be such a place but is a video such a place in what way is it reasonable for any officer to think or anyone to think that so why can't they go after everything between among coconspirators regardless of what it looks like at st blush i mean every drug case of ever seen they don't they don't say hey i'll sell you two kilos of code conspiracy including contacts between conspirators that's not what the law authorizes the wire authorizes search of the house including electronic devices or evidence of financial transactions of insurance fraud or gurgling and this is not a place which looks like it might be within the cell phone the videos particularly the family videos to be a place where you would find such information  below say even things that don't look like they're within the scope of the war at st blush allow a quick look because if if if the doctrine were otherwise then we the judges the courts would be given carte blanche to criminal actors to mask their criminal conduct with what would appear to be otherwise innocuous activity if the quick if a quick look we said the quick look is the screen shot if the screen if you're going to take a quick look quickly because you know it strikes me that this is at least somewhat analogous maybe in terms of its operation highly in our use to the but when when you are monitoring the hard wire when you hear something that clearly suggests this is personal in nature or at least it's not related to the alleged criminal activity that's been set out how much quick look you can do it wouldn't be one minute and fourteen seconds into the video which is on a minute and forty seconds long they what they did very obviously was just you appears from my colleague's argument that he has narrowed his focus to whether or not the introduction of the video violated the th amendment i am prepared to address more broadly t so even assuming argue wonder they had a lot right to click on this and take a look at it we should have been out of it within ten or twenty seconds because it's just you know a three year old well my response to that is  listen for a proximately two minutes before they have to decide that that conversation is not pertinent here we have a very short video what is striking about this video from the from the get go as soon as you press play the he messages that were worth available that he retained from the timeframe of october two thousand and eleven through january two thousand and twelve were the messages that he sent a factory to a seven hundred text the the messages the information pertaining to vandergrift have been transferred from an i phone four where they were originally generated to his current i phone five this said to be agent who is conducting the search there's something important about his communications with phantom craft as i understand it my my colleague is no longer contending that the seven hundred text messages and we didn't introduce any of the rules should be different in a case like this where you've got active communication than in a case like this the below where you've just got somebody is computer sitting on their desk in the agents are going to search the computer i don't think it necessarily has to be different i don't think we reach plainview exception that the p is an exception to the warrant requirement here we have a warrant that authorizes not only the search of cell phones but then sets the parameters for that cell phone search which is exactly your point judge cross and there is the attachment b which was not challenge in the district court and my understanding is wasn't challenge an appeal is that they could search for photographs and videos that might evidence that could evidence commission of the crime so right off the bat the agents who are conducting the search and it's a very carefully they used a face sheet of the warrant they used detachment b which was very detailed and they see that they can search videos these are videos sent to his primary coconspirator during this timeframe that's what i'm driving at you're oregon is it doesn't matter whether it's a three year old the family dog or or grandma in a hospital bed if if the transmission is from coconspir coconspirator your argument as i understand it is that the ages can can have happened can review it based on based on the authority provided by this particular want it might be another so when they would matter not you under this you press that video and it says say hi to mine and given the time frame it was a short video the agent was entitle to view that video to see if there was any evidence that related to the commission of the crimes and so i believe that the video was covered by the warrant and it was entirely reasonable as the agent testified at the suppression hearing there were some categories o some pieces of evidence potential evidence that you could look at immediately determine that it wasn't relevant for example photograph you can tell by just looking at the thumbnail of the photograph whether it's relevant but with the video there was no way of knowing what was in that video it could have been he had his daughter talk about proceeds and money and drugs some other aspect of the drug trafficking crime or arson i mean that the fact that the daughter is  you know just kidding read the fine print in attach would be that's not the way this should work who knows what it but if you read the paragraph that references electronic whitman and you inserted and what was important about it it listed a non exclusive list of some things that yours recognized were dated or perhaps dated aged point could it be and this is not excuse by any means but perhaps explanation the agents are relying upon the same stock language that they have been using for years it could very well be the reason that but it might my point is if you include cell phone just insert cell phone into that it would because what they were concentrating on was electronic equipment that was capable to me very good argument demonstrates just how easy it would have been and would be to include cell phone and a plugin cell phone if you will of records that would be created primarily financial records granted and then combined with attachment b which included cell phones it did provide that magistrate with a substantial basis to find it was probable cause to search the cell phones for evidence that crime is the government's position that if there is the allegation of a crime being committed as long as the cell phone is listed on  time on the attachment that there is probable cause to believe that a cell phone will be found in a home or office for that matter without anything  creates probable cause to believe that some of the cell phone will be found and can be seized no your honor that's not our position at that just the commission of a crime but here you have to look at what the and the extent of a fraudulent activities of this defendant as well as the extensive drug trafficking conspiracy activities of this defendant and combined with the affiance observations about the use of electronic equipment to create store record transfer documents that's the key language a cell phone is capable of doing all of that and he did include his his based on his training experience that these types of crimes would generate records and that those records and it should have been included could mean could be stored and nature of cellphone use the fact that there was no specific reference or in the affidavit that he would own cell phones i think this is a case where you could draw a reasonable inference that this individual is likely to own and use cell phones he ran multiple businesses from h a cell phone it would be in his house and that he would have evidence of his crimes on it was not not the focus of of either per game but we can affirm on any ground and i guess i'm interested in your your views on homelessness given this statement in the pretrial proceedings by the prosecutor telling how important this was as a piece of evidence yes if i might explain we did not cruise a harmless error argument in our brief because the grief although it focused on the video mr goldberger preserved and he did challenge the admission of all evidence relating to the cell phones that was seized from the cell phones it was done in a footnote but it did preserve the issue and we felt we could not make a an argument that the mission of all of the evidence that was seized from that three cell phone would be harmless beyond reasonable doubt we do believe strongly however that we we could meet our  burden of proving that that video the admission of that video was harmless beyond reasonable doubt if it's just limited to the video and that is this court has recognized that the government needs  standard when there is overwhelming evidence of the defendant's guilt and in this case there was overwhelming evidence that mr vetri was involved in this murder look at the nature of the video alone the video is taken ten days after the murder and all it really shows is that vetri after the fact was aware that this individual had been killed and that it was done by shooting him that's all it shows there was four witnesses testified at trial about that reason wagner in the murder significantly his friend eric martir with not at all involved in the murder plot the others were that tree told him once he said yeah those are the guys he was pointing to a trial he was he was happy it was done he didn't care how many times we had shot him i tell testify say he told that tree to day before the murder that he was cutting him off from the pills because he was going to give all his pills to the bo t so we there all of the witnesses were consistent there was also eric hazing is it your point yet so so in other words that we do believe there was such overwhelming evidence that we can say that this evidence was the video evidence was harmless beyond reasonable doubt because yes just to clarify you were saying earlier that you you understood the challenge to all of the evidence on the so community being preserved i  cell phones at all and that all of the evidence should have been suppressed maybe i was reading more into it but obviously there was not any specific and i think it's telling that there wasn't any specific discussion about the  whether or not the other evidence was admissible and i didn't get to the good faith exception but if i could just know and this is where we really part ways with the griffith decision in the good faith exception even if we were to find we're not the government but i understand you can affirm on any ground but i think the government made a conscious and wise decision not to argue harmless error of the standard here because it's a constitutional issue would be harmless beyond reasonable doubt not the question is not whether there is a lot of other evidence the question is whether this evidence beyond a reasonable doubt did not contribute to the verdict the prosecutors do in the dynamic of trial was necessarily the opposite of that because the prosecutor made not only in her in writing in the in the motion before trial how important this issue argument was sorry this piece of evidence was but emphasized that in closing argument played the video repeatedly during trial it's the government says  case and they wanted to use it to get over that last reasonable doubt that's all it takes for it not to be harmless the this had to have been an enormously powerful piece of evidence and i'm grappling with this whole concept of harmless error applicable to a piece of evidence of this explicit nature and what would have to be this power i mean i can only say that in my days as a prosecutor if someone had dropped a piece of evidence like this into my lap it in amount of the other evidence in the record was so overwhelming that the jury mill reasonable jury could have reached another conclusion even absent this evidence and what we have here not for pick five including pharmacist testimony that that's not the crock of harmless error test for a constitutional lawyer it's whether you can say beyond his will doubt that this evidence this evidence the contested evidence did not contribute to the verdict not whether in an imaginary trial without this evidence