the first case on the calendar is united states  may please the court my name is michael rabbani and i represent the united states the question on this appeal is whether the district court erred in suppressing the government's wiretap and location data evidence this court should reverse the district court's ruling for two reasons first the district court suppression order directly contradicts this court's decisions in bianco and rajaratnam because it failed to apply the frank standard in evaluating the government's wiretap applications second the g p s monitoring of limbus did not violate the fourth amendment and at a minimum the state and federal officers acted in good faith reliance a binding appellate precedent and conducting that search wiretap applications here the district court did not apply the frank standard in particular it did not kentucky materiality analysis rather it concluded that it had to alternative routes to suppress first under the wiretap statute it held that an intentional and intentional misstatement was sufficient on its own to justify suppression and second in any event it held they had inherent authority to pursue press the government's let's say that we agree with you for the moment that the district court erred in invoking supervisory authority and that it erred in suppressing the wiretap evidence without making a materiality determination as i understand your papers you're asking us to determine for ourselves whether the statement was material but why would we do that why wouldn't we they cadence in this back to the district court for that determination to be made in the first instance is your honor the government is asking this court to make that determination at this point there are no additional facts that the district court would need to find with respect to materiality in this case under the material under the materiality analysis this court looks to the corrected affidavit doc e here simply the the court would add the omitted information into the challenge affidavit and assess whether or not there was a residue of probable cause and a says to the left after adding that omitted information into the affidavit that can be done here without any additional factual findings by the district court it's simply adding that information back in and assessing whether or not there's material there's probable cause and assessed it and the government would know that when the court does that analysis there is clearly a residue of probable cause in assessing the in this case and this is not a hypothetical analysis here because the corps in fact did correct submit corrected affidavits to the district court below in this case in particular following the challenge affidavit the corps submitted for additional wiretap applications in those four additional wiretap government right sorry the court for the government submitted for additional wiretap applications to the court apologies or other and in those four additional wiretap applications the government included the earlier the wiretap information in the wiretap investigations that were omitted from that first affidavit three different judges of the district court granted those four different wiretap applications so that shows when the corrected affidavit doctorin analysis is done here in fact there would be probable cause in the ceci why is that necessarily the case because the later wiretap applications presumably contained additional information including the fruits of the first wiretap the that is correct your honor there were some additional facts in the later wiretap applications but i think it is it is indicative  here that the court the court nonetheless granted those wiretap applications with this omitted information and we can just look at the facts in the first wiretap affidavit and determine that there is also a problem cause a necessity in that regard i think it's important to focus on the fact that the first wiretap application was directed towards earl davis not the defendant came l m s not the defendant stanley for it was earl davis and the telephone that he was using earle davis was not a target of the two thousand and eleven wiretap application that was omitted from the first affidavit or the two thousand and three and two thousand and four applications that were omitted those earlier wiretap investigations had no bearing no relation to this so it had nothing to do with whether or not there was probable cause to tap earl davis's phone that probable cause was based on a confidential informant who arranged to hear when transaction at the end of two thousand and fourteen with davis over the target telephone  davis contact with other suspected traffickers if anything those earlier wiretaps would strengthen the probable cause analysis in this wiretap affidavit because it showed that associates of roll davis namely savannah trap or stanley fuller and a couple of others had been the subjects of earlier heroin trafficking investigations but that was just background information that would have gone a probable cause the problem here was based on this confidential informant by harold now that the district court in this case made a determination that the agent had made a knowing statement committed perjury why wouldn't that be an appropriate circumstance where a supervisory authority could be exercised well the supreme court or in pain or your honor has held that district courts may not use their inherent authority to establish sub constitutional standards and in particular this core after painter has held that the fourth amendment is a particularly inappropriate circumstance for the court to exercise authority because there are stablished standards under the fourth amendment for when suppression is appropriate here the franks standard and as applied in this discourse decision rajaratnam which is less than five years old particularly governs appropriate in light of an intentional misstatement in that case those cases make clear that only when there is an intentional misstatement that is material and suppression orders are powerless then if there's if somebody gets up an agent gets up and decides to lie to a judge in an ex parte proceeding judges are absolutely powerless to do anything about that no you other judges are not powerless what judges can do is assess whether or not suppression is warranted under the franks analysis and that's what the supreme court has instructed that district judges should do is evaluate whether or not but in that instance if if it doesn't meet the materiality standard francs and you're still having a situation in which an agent is knowingly lying i'm not saying that that's necessarily what occurred here but it seems to me that to apply painter here for close is a situation in which you have somebody who's knowingly lying to a judge and that wasn't the facts a painter wasn't about lying to a judge  then sensually it's tolerating that because it's saying a judge has no inherent authority to do anything about that well your honor the supreme court in its fourth amendment jurisprudence has carefully struck the balance between when is appropriate to exercise the exclusionary rule and when it's not and as it has said i just exclude evidence all the time and that if the prosecutor shows up a week before trial and and and has a new witness or a new piece of evidence that wasn't previously disclos the judge says it's not coming and so that's part of the inherent authority in terms of controlling the trial so why is this what is this really different why can't judges say as a sanction for lying to the court this evidence is not coming because the supreme court said that the exclusionary rule is is a tool of last resort and it is only to be used in circumstances that that where there has been intentional misstatement that is also material because it recognizes that the exclusionary rule inhibits the truth finding functions of the court so it is carefully limited those circumstances and made the determination that it's not enough to have a knowingly false statement i would like to address the contention by the district court that the committed perjury the  appeal we would ask this court to evaluate to questions in considering whether or not perjury was committed here first what possible motivation to the each side agent have to commit perjury in this case and second does the course of events here in the keep perjury or an intimate innocent mistake as the district court itself initially found at the evidentiary hearing in this case and it just looking to motive we think it's important that this court balance the incentives of vs the consequences of committing perjury  think i think i put least i understand the arguments that you make there on that i see your time's going a little short i wanted to move to the g p s at issue if i could yes your honor the newton case suggest that there needs to be a rule or regulation that justifies the the parole search you remember that and that comes right out of griffin versus wisconsin and my question i guess is is was there a rule or regulation that justified the new york parole officers to engage in essentially a search for purposes of helping the federal law enforcement make a prosecution your honor i think there's the rules or regulations that govern the search here were the conditions of release which authorize the prologue officers to conduct a search of the defendant's resident residence person or property there's not but there's nothing about in there that in those rules or regulations that say anything about we can strap an ankle bracelet on you and monitor you for everything that you do for two years as they're no your honor but this court will look to the  amendment to determine whether or not that search was reasonable under the totality of the circumstances and there's tuesday and you don't dispute though that that the they wouldn't be it would at least require a warrant after jones right if the person were non parole or soup or post supervision release right jones and not address the parolee context or honor and i think there's a distinction between jones and this case of the question of jones was whether or not a search had and i understand jones but it seems to me when we look at the all the cases with res newton the other parole search cases we don't have a situation in which there's two plus years of g p s monitoring do we know what we do have a new in your honor is the court making clear that the level of intrusion is not what matters here it's not how long the search is or the nature of the search as a sara lee that determines whether or not federal law enforcement involvement renders it unconstitutional but what if we look at it and i understand the argument from the side isn't so much that apart from the district court ruling it's about what is at the new york state officer for doing whether that was reasonable and that's what i'm having a hard time understanding when we look at these very general conditions here that say giving consent to permit a search but why would somebody recently understand that to me n you can see you can put an ankle bracelet on me for two years you could presumably under the same circumstances you could install cameras inside the person's bathroom in their house and have listening devices throughout their their whole home well your honor in this case the defendant mr landis was specifically advised before the g p s it was put on him that he was going to be subject to that monitoring and that it may last for the rest of his the rest of his supervised we might write that in sampson sampson and knight  most recent supreme court authority there was there was either a statute authorizing the type of search that takes place the law enforcement officer can conduct a search or a court authorization for the condition it issued while here it's a parole officer and his individual capacity who makes a determination to use the g p s you are see that my time has expired may answer your question so i do think that the statute here does in fact authorize the g p s monitoring in this case there's two two provisions here the conditions of release there's the general search condition and there's also the provision that authorizes the officers to impose special conditions of release one of those recognized special conditions of release is g p s monitoring and i don't think that whether or not there is a statute necessarily as determinant of in this case sampson instructs us to look at the totality of the circumstances here we weigh the privacy interest of the of the parolee versus the state's interest and in sampson it wasn't even a particular interest in the search at issue that the  found constitutional it was the state's general interest in monitoring a parolees that the court relied on and finding that a suspicion was search was warranted this this case goes has much more individualized suspicion then tha then the facts issue in sampson sampson it was based entirely on the status of the individual as a parolee and nothing more has significantly more intrusive search by any measure right i mean sampson was a one time only search granted suspicion less and based entirely on the fact that the person was on parole but this is essentially two years of g p s monitoring yes your honor and i would point out in our papers we've established i think that during that entire two year period there were ongoing indications that this particular pool leave was engaged in by a leash and of the conditions of his release during that entire period it wasn't just at the beginning it was just the middle it was just the end it was for the entire time period so those ongoing indications that he was engaged in violations of the conditions of his release justify the search throughout the entire time period under sampson if there are no further questions the government spec for the requests that this court reversed the district  suppression order in its entirety thank you issue let me say that the judge y c found in any event whether the state of new york there would then not file ate his rights the federal authorities certainly did this record found as a matter of fact that is search was conducted for years the sole purpose of furthering a general criminal investigation and even huntley says it is also significant that there was no federal government that slap the ankle bracelet on your client no you are not it was the state wasn't it to state parole on the road state proceeding that i and there was no federal government in order in place that required the states do that have really is just a collaboration right it's a collaboration between the state probation officer probation officers doing their job and saying there may be something very significant here we want to pass this information on to the federal government isn't that what they're supposed to do now not in this situation as developed here by the fact your honor but there was nothing here where the federal government engaged in any kind of search was there when they took over now they took over then it took over the prosecution noted took over the investigation they did they require the g p s to stay on i didn't say they made a recommendation for the g p s say on that was probably wouldn't   minded if the if the g p s is on but that was an independent decision right at the beginning to put the g p s on and throughout to keep it on it was an independent secession made by state parole officers no your honor it was a decision that if it was legitimate in the inception for parole supervision and it's conceded that it was only supposed to be on for six months after six months of the order correct me if i'm misremembering the record but it could have been on for the entire period there was a written document that said it will be on for the duration of your time on parole the the practice may have been six months but he knew that it had been removed in six months he asked for it to be removed and it wasn't well the courts found court below found that it was only supposed to be on for six months and then at six month period lambasted nothing wrong after a six month period he started asking to take the bracelet off and the supervisory people parker the supervisor chief brown and co vic's the parole people they were not informed of any violation the government said here in their argument that they were continuing violations unfortunately the supervisors the people that had made the decision and the chief parker had to make the decision whether or not to continue the monitoring after this story to six months as with the manual says i think it's four to six months rather he never had the ability to do that because he was kept in to talk about the entire investigation because scam when we have the b s s which is an investigative agency of parole it's not the supervisor agency the s s is supposed to investigate if they think there is wrongdoing and turn that information over to the supervisors sort of supervisors can make an intelligent decision whether or not to violate this individual that improper is it b s s to cooperate with federal law enforcement that it's it's not improper but in this case in the facts of this case for over two years to have an ankle bracelet on him as part of the investigation with no legitima parole reason in other words the judge scare when the b s s officer became an honorary federal agent he even was involved in monitoring wiretaps he's the one that put the handcuffs on lambastes in july of tw fifteen to arrest him so he really stop functioning as a person of parole he actually was a federal agent for federal purposes and the feds in december of tw thirteen when the federal government went with the federal agents went to the u s attorney's office the u s attorney's office said no you don't have enough drugs here for us to be involved so it really are and i just want to make sure i understand this correctly said in the the initial six months of surveillance there was no indication of possible parole violations the rectory and matter of fact the parole people brown testify that he only looked at the summaries and there was no indication they were looking for the parole supervision was looking for a violation of curfew that's what they were looking for and there were violations of curfew through g p s system later on after the six period solely for the purpose of conducting what was a federal investigation it's the evidence that anybody on the federal government side knew that scanlon or anybody a parole had they specifically said in that application that the more g p s was on for a parole violation and then they listed when court authorize warrants so they knew the difference and the courts found below that they clearly knew that they had no right to do that they knew that there was no warrant in place by a court and they were aware of that and the interesting thing is when they thought that the g p s wasn't working that parole put on they went to court and they got a warrant they got for the time for the for the telephone which clearly they would have had to have done but in light of the cases like sampson knights and the other cases that recognize a diminished expectation of privacy for parolee why wasn't it least reasonable or debatable on the federal government's part for that matter on parole officers part  that this was not violating the constitution such that the exclusionary rule should apply but i don't think any court in the federal rule forty one where you have a right to go in front of a writing to be searched by a parole officer or a law enforcement agent at any time with or without cause and in that case a law enforcement agent you presume he may have been motivated by the desire to find evidence encounters a parolee and performs a search and the court says it's reasonable under the fourth amendment that's related to a state statute in california which permitted that kind of conduct in new york state were governed by hu huntly doesn't permit that kind of conduct and therefore under huntly we each state the supreme court goes by what the state's rules and was all of the law of new york state is that it has to be reasonable and rational and in this case it was is not reasonable and rational i don't know where the line would end between six months and two use but for sure it would end a long time before twenty five twenty six months as it did in this case if there's no other questions from the panel i thank you for your time may please the court my name is james because source i represent stanley fuller and i'm honored to be here judge livingston judge meyer you raise the questions at the heart of this and i have to say there are such important questions because there does come a point there has to come a point and all the cases cited by the government and that that you spoke of judge meyer they clearly support this there has to come a point where a district court judge can say you can't do this i'm stopping it right here and committing a previous statement making the previous statement in a wiretap application then compounding it with the explanations put forth at the hearing also on their own it has to be that point and all of the cases say that because all of the cases whether it be pain or whether it be donovan whether it book they're just a huge number of facts that are state in there they're important there were required it's essentially called a super probable cause warrant with good reason because oftentimes these what was wiretap applications well exceed what is required for probable cause why is it that the misstatement here intentional even if we assume it's intentional willy could be reviewed as material well first of all it judge wein having as many years on the bench as he has when he says the word perjury he does know the demolition the nation of it and he is extrapolating it from the testimony but it's a good question let's really look at what happened here what happened here in terms of materiality is you have an agent who is done wire taps before who is working with an assistant united states attorney also experienced in this this is not a different investigation he's dealing with an investigation that is really a continuing investigation and he's aware of it he knows of the prior applications he knows full it was intercepted he knows fuller is a target he knows fuller is somebody that he's looking to intercept here this was not some buried fact of no consequence twenty five eighteen specifically requires that you list the prior applications he does not list the prior applications and right before that he says that fuller is somebody i believe there  probable cause will be intercepted and then under oath his explanation before judge weinstein is you know i didn't put him down because i didn't think he would be intercepted then you have a submitting also a sworn affidavit saying these words i have discussed the full facts and circumstances surrounding this application with agent papa law and there are no prior applications in this case so golden case that the government hangs its hat on with these wiretaps rajaratnam is fully distinguishable in this case this court because there was a full some hearing made a determination that judge hall well improperly concluded that the statements were made recklessly because he did not look at the subjective intent and that's because he had a fulsome hearing where everybody took the stand and said look this year in your original hearing correct me if i'm misremembering the record but the original statement was that the agent was careless the statement that the agent had committed perjury comes in a written opinion issued later and it's issued before the the government has responded to the allegations of the defense that this wasn't carelessness this was perjury he said the government had no opportunity to respond i understand that your honor however judge weinstein did indicate that he was suppressing and then apparently upon reading the submissions and reading the record he made a more detailed decision in which he found it to have been perjury but it's a good question and you're right judge weinstein may have done things slightly unconventionally here but why then did not the government as it does all the time moved to reargue you as mr rubenstein did on the g p s why did not the government say your honor we have other exhibits may we please present additional testimony because and i say this most respectfully this is a record that they want to come to this court and just have it fixed in its entirety they want you to make a determination it wasn't perjury without a fulsome hearing they want you to make a determination that it's not material without a fulsome hearing why why did they not do that what possibly could have come from a more fulsome hearing when the assistant united states attorney is called to the stand presented with her sworn affidavit in which she states that she went over all the facts and circumstances and there were no prior applications in response to your question judge meyer these are all experienced people how many times can you write something down that's not true that you know is not true and not realize it's not true this investigation the government also claims with my questions much more to the issue of materiality and why it would have made a difference the reason  the judge's issuance or approval of the wiretap and the answer to your question is this most of these cases deal with materiality from a probable cause standpoint and you're so right there these applications are chock full of probable cause and taking an inconsequential fact in or out is not going to affect probable cause but congress when they enacted twenty five eighteen and put subsection in there specifically said the prior applications not necessarily for probable cause they go to a necessity so why is it material because judge gleason would have known not only that there were prior applications he would have known that the very person that the government sought to identify in the january two thousand and fifteen wiretap was a identified he was a radio overheard that they were informants that identified him as a supplier and as a buyer to one of the agents he would have also known and this goes to the staleness way back to the twenty eleven and to your question and this goes to the government's assertion that the information was stale it boggles the mind because this court has ruled time and time again that when you look at staleness one issue you need to look at is a continuum and in our submissions to the court we presented a graph of a continuum here this isn't stale information the wire taps in two thousand and eleven the investigation continues in two thousand and twelve thirteen fourteen fifteen with informants controlled purchases all sorts every possible type of investigative technique and judge gleason would have been able to look at the government and say wait a minute you know who fuller is you intercepted him you've got additional information you've got physical surveillance of him and landis it wasn't just the omission of our stale wiretap this was a wiretap after which the united states government and the agents continued investigating not different people same targets same organization same name same location same drug same modus operandi and they had continued that investigation throughout if the government stood before you today in another case where the defense was saying that that wiretap was stale i assure you they'd be standing here saying no your honor it's not stale because this investigation went month to month year to year and there was a continuum of investigating fruits of which followed that so twenty five eighteen he does not go to probable cause it goes to assess to the end judge gleason had the right to ask those questions thank you thank you title three and i think inherent in that decision is determination that it's not a material violation of title three when such a violation occurs also it's not just that these wiretap affidavits were stale it's also the fact that they didn't relate to earl davis this was an affidavit seeking to to intercept earl davis on his telephone the previous investigations had nothing to do with the old days so it's hard to see how those investigations would be the disclosure that would have been required would have been just the fact of the prior wiretaps is that right that's correct or wrong not some further detail about the continuum as we just heard from from defense counsel that's correct your honor and also it's worth pointing out that this was these these earlier investigations were not into the same organization they were into a different group of people who were i would say the the leaders of the organization in two thousand and eleven by two thousand and fifteen it's an entirely different organization with some overlap but it's not the same case i think also notably absent from the defendants argument here is any discussion of why the agent would commit perjury he did not address the question of what the motive was and looking at this particular mission it's not material so why would this particular why would this agent risk all these severe consequences to his career to be accused of a crime by a federal court to potentially be fired eventually did be disbarred because he is a lawyer for an immaterial fact the why the government's wiretap applications did not rise or fall on this else or check it did not rise or fall on whether or not these prior investigations occurred and i think if the defense can answer that question here on this record this perjury finding cannot stand it would be an injustice on this record to hold that this egypt committed perjury with the with the sparse facts and this the