both at the initial seizure was improper and that the waiting for nine days action seizures to get a search warrant was improper if i captured  done so the extent it took another year plus for the government to get into the cell phone even after two different search warrants that's not part think if we look at the district court's opinion on the it tends to missed the point and confused the correct standard that we should be applying we look at the supreme court's decision in r the question of whether a piece of personal or real property has been appropriately seized is determined in accordance with mcarthur versus illinois and united states vs place it's not a question of whether the object was searched incident to arrest there's no seized incident to arrest exception that would be a pleasurable in this case here the guy was the s and other items that were commonly used in the trade there was no mention of a cell phone either in the affidavit or in the war itself this was readily conce by officer rourke at the time of the suppression hearing you're saying the search incident to arrest exception normally doesn't allow you to see something and you have to see something first before you search it's like the cigarette package and the supreme court case we have to grab it's take it into your possession is no enforcement then the surge in center is if you can actually look through and see that there is contraband in that cigarette box i've absolutely correct your honor but what the distinction that i'm making illinois versus macarthur the supreme court instructs that this court and the district court needs to balance the interests of the government against the interests of the citizens and there have been for particular areas they've been sort of pointed out as being the ones that that should be looked at what is your argument to put on the fact that it's not on and there's this debate about how far away different they would or would you be saying the same thing if it was the cell phone was in his pocket i think it's creates a nexus between the self and criminal activity basically what officer  assuming you're right that the galveston police committed a constitutional violation whether the seizing on the first place keeping it nine days whatever for the moment violation what about the fact that the feds come in later that federal agent has no idea what the galveston police did to obtain this thing where they attained it and he gets a search warrant as he knows they have the phone in galveston custody he gets a search warrant to search it then that's how it gets in a federal law enforcement in a they're eventually able to find the breaking of the phone and get the evidence why should there be a suppression remedy when it seems like the federal agent got a search warrant and did nothing wrong i would i would disagree with you i mean the defense delayed undue amount that you're too challenging the state waiting nine days to get a warrant you're absolutely would i don't know that the feds would have delayed but the item would never a warrant for another three weeks why is that delay relevant i think i certainly don't believe that it is i mean you're not focusing on it in you know i ask you about the extent of your grandmother trying to catch you but is know what steps he took or didn't take and how quickly he took them the government at the time removed to suppress certainly did not raise mr  as being sort of the saving factor when after the nine days there is a state search warrant to say you can look into this phone and they hadn't been able to accomplish that because they couldn't get through the password right that's what we should in fact go into the undue delay analysis that they had and you know it's one thing if you if you've been able to search and see there's nothing there of course give it back you have some obligation there but if you haven't achieved what the search warrant says problem this is particularly important in this case because we were faced with the unwelcome prospect of trying a case where the government to do our bombs over regarding a particular jury instruction there was no error whatsoever why the right trial or in the district court's denial of mr ford suppression of the jury's guilty verdict should stand in the district court's judgment should be affirmed based on my friend's points of emphasis i put on doing the same which is i'm going to actually talk first about the second issue the confrontation issue and then all discuss the suppression issue but of course i'm happy to address any of the issues at the court's discretion let me begin very briefly on the confrontation issue and starting first be with the assertion that we just heard about the brady  clio information this point was raised very briefly in at least and for purposes of appeal i believe in the state and mr fulton statement of the case in which he requested that this court do a second look of those records my friend just stated that the government was able to walk bombs i think those were the terms and terms of these records the government never reviewed these records in fact we were entitled to under state law and we made that point very clear to judge takes under pennsylvania versus richie which was discussed at length of regarding these records mr fulton would have to make a showing first as to what these records would show and then the district in beyond speculating what they might show in favor of this case mere speculation is not enough and then and only then could the district speculated as to what these records would show we'd the government did not know what was in them but neither did mr fulton and so the district court went in you know when in camera and reviewed those records  we there is nothing that we had in our custody they were in the custody of faith larson who is a galveston probation officer who turned them over to the court the government never solve these records but one of the here and you know defend and say there's absolutely nothing in those records we but we take the district court at its word that he thoroughly reviewed them did disclose certain materials  involving some of the victims based on his review mr ford has asked this court to review them i suppose the court they are they do appear in the electronic record on appeal we haven't seen them they're sealed but the court can access them and so i suppose if this court were to deem the issue properly before the court although i will add this again this to the extent it is an issue it was raised in kind of one sentence in a statement of the case as opposed to a standalone issue that's why we have the government didn't really brief it that is separate from the issue involving a v and and the  her state charges and what mr fulton wanted to cross examine her about and again our position as we've explained in the brief is that he has to show something beyond mere speculation that the government here the federal government could influence those proceedings he did not make that showing and in fact a v testified that she asked for a benefit and she didn't get anything so there is nothing in terms of a confrontation  an ability to question aviate about her potential by us he just didn't get the information that he wanted or the answer that he wanted let me focus on let me turn and focus on the suppression issue the different court properly denied mr fulton suppression issue the phone was unlawfully seized the nine day delay between the seizure of the phone in obtaining a search warrant was not unreasonable and even where this court to disagree with either conclusion or both conclusions the good faith exception would apply forward here beginning there was discussion about the riley case the supreme court case riley involves a search incident to arrest of a cellphone and that is where the supreme court held that when there is an arrest a wall full arrest the police can't simply just rifle through one cell phone without getting a warrant there's a famous line get a warrant riley has no bearing here there was no search of the phone when the phone was simply see east and at that point officer rourke did didn't attempt to search the phone until first seeking a search what he did exactly what the riley court talks about and to the extent my friend talks about illinois versus macarthur united states versus place those cases are about the delay delay it's not about the initial seizure so i think first i mean of course this court is free to jump straight to the good faith exception if it wants our position is that there was no  whatsoever that the phone was unlawfully seized and that the delay was not unreasonable as to the wall full seizure we do think it was in it was covered in the war absolutely mr fulton is right the warrant did not functional equivalent of of financial records and documents and the drug in the drug trafficking context because cell phones as a mode of oral and written communication can be used to rely on this sort of extension without question i mean i certainly agree that the better practice would have been to include the cellphone if the cell phone had been written obviously in the war we wouldn't be here having to make this argument our point is simply given that this is the record that is before this court we think that of wire still supports it absolutely we think that the best practice would be to include cell phones it and were we advising the galveston police department we probably would say yes you should change your warrant so that it's specifically included that doesn't mean that the warrant does not meet the particularities of requirements under the fourth amendment under case it's like a wire so yes i certainly agree with you that the better practice would have been to include that as a term we still think it was a lawful seizure under the warrant you also argue when you when you're staying with that person if you want to go ahead you also argue plainview which requires  that the object be incriminating which we've interpreted to mean basically probable cause to believe it was used to criminal activity and your argument is look drug dealers use phones there's a probable probable cause that they could he was using this phone in drug trafficking text messages whatever what about the other side's argument that there's basically no limit on that that that would apply given the pervasive use of cell phones today that would mean that cell phones could always be seized in plain view or under other standard similar standards respect think that's taking it a bit too far it depends on the context when we're in the context of drug trafficking yes we do think that based on the officer's experience and what he or she testifie suppression hearing as to his experience his or her experience that cell phones seen in plain view during an arrest for drug trafficking that are associated with that defendant yes we do think that they can be seized absent just leaving an exception depending on the testimony of the officer as to his or her experience and here are away twenty two forty one officer rourke who is a ten year veteran of the narcotics vice division said his experience is that drug dealers use their phones daily to commit these crimes we're not saying that anybody walking down the street can be a cost id and ask for their cell phone because it could be potentially a potential instrumentality of a crime we're referring to the specific drug trafficking context and we do think it's met and we do think that it is particularized based on again officer rourke's testimony about his suspicion so if you finish your answer just cause you to look like you're you're really time to ask my question i want to move on to the delay issue regarding the getting of the search warrant each side has offered up some factors from other cases not initially from the fifth circuit sounds to me as if we may have to develop some sort of view as to why way to measure de lay and what what the considerations are it does seem to me that the nine day delay does  suggest certainly a lack of urgency on the part of the government police department and perhaps a lack of even awareness of the privacy interest in the general case more in syria so give me your take on why nine days is not too long and what we ought to be looking at in making that determination right i do agree with my friend i think that this is really an issue of first impression to this circuit that i believe it's the howard case from one thousand nine hundred three of this court is the only one that i could find addressing this delay point and that's why we were talking about what all the circuits how they kohl asked around this test the test is you wait the defendant's possessory interest against the state's interest in the seizure and here it's a totality of the circumstances test there is we agree with all the other courts and say there is no bright line so we think it's impossible to say for example nine days categorically bad we think that you have to look at all the circumstances and that's why why you know one court has said for example ninety i believe it's ninety minutes may be unreasonable under some circumstances whereas a twenty one day delay may be reasonable so we have to look to all the circumstances here we do not question and we have never questioned that mr fult possessory interest in his cell phone we further agree with him that he will even go a step further and say it's a heightened interest you know as opposed to say if we had seized a a drug scale of mr foreign just because of what is inside of a cell phone but critically here his possessory interest was we can because he never sought it's return during that time and that is one of the circumstances that this court mu consider in weighing his possessory interest is did he seek its return and by the way even if he did seek it's return that's not necessarily dispositive in burgh are the seventh circuit case cited in the government's brief there the the government sees the phone based on probable cause of a crime that is a probable cause that the phone was evidence of a crime and actually if you were to look carefully at alone distinguishes this case from the others but let's assume that you instead agree with us that it was it was a a valid warrantless seizure it's still based on probable cause that favors the government and then as out with your questions about you know whether it seemed as if there was any urgency or not we don't think the record is fully developed on this point we don't think it's as we don't think the testimony is as clear as my friend says it is true and the court should look at the testimony of twenty two forty nine and fifty eight because there my friend is is questioning mr officer wark about you know you didn't see any urgency and that's the reason and the exact quote that he has responses no see me colon it was absence and there was no follow up from that we don't know what that we don't know exactly what that means was he saying no i didn't see any urgency what was he referring to him that was evidence we don't but let's assume for the sake of argument that this court were to agree that he was negligent that he should have acted faster as a seventh circuit rightly stated in burghardt piece imperfection alone is not  important specifically its factual findings that there was no evidence of unjustified neglect purposeful de lay or bad faith by office or work in the delay that's what those come into play and that's what differentiates this case from  ng chart the ninth circuit case cited by my friend that's a case involving systemic deliberate negligence if there was evidence that officer work just that officer work was manipulat timeline or just dragging his feet to trample on mr fulton's rights then certainly that would weigh in favor of it but here there is no such evidence of that and so we're simply looking at negligence and that alone you know as negligence mean that otherwise how do you think that does just qualify as soon as long as there's nothing deliberate that doesn't really weigh that strongly no i think if you're i do think it's a factor to consider hearing he himself said i bonded out of custody that same day after he was arrested back during the original seizure of the phone so he could have sought return of the phone at any tom during that and that's not just necessarily say that the police would have released it but he the point is simply he could have he did not as a district court stated at the suppression hearing there was no evidence that he ever sought the phone's return so i do think you have to waive that factor  and second did agent rennison acting good faith and addressing those in reverse order he strongly acted in good faith in his affidavit he recounted the history leading up his seizure of leading up to how he received the phone and explained why you want to but go into the first part which i think is going to be the if the court were to turn to the good faith exception the main bone of contention would agent medicine have known that this is categorically unconstitutional i don't think so i don't think so based on if we're just looking at the delay issue based on the absence of case law on it and all the factors to consider and also age at rennison could have considered the fact that the second a second judge issued the search warrant for the phone and if the delay was so padded boric lee unreachable that it violated mr phones have thought well then that second war would have been denied so we think that even if the court were to find mr ford's fourth amendment rights violated the the good faith exception would apply are no further questions we ask that you are from the judge even of the district court thank you believe that it passes muster as a warrant that allows you to search a cellphone under the supreme court's precedent for this court's precedent or state court precedent and i don't think mr roark office or war believe that that warrant allowed  him to seize that phone or to search it and that's how it was documented in his report in a geary when they're talking about functional equivalent c the warrant in that case allowed the officers to seize among other things address books and telephone logs and all sorts of things that one would expect to find inside a cell phone in this case the warrant sa they can officers can seize cocaine any and all implements in instruments used in the commission of possession distribution or manufacturing of a controlled substance in violation of texas health and safety coach after forty one and property and items constituti evidence of the above including but not limited to scales baggies ledgers u s currency measuring devices and other items containing residue of course they want to rely on employment and ensure much much wrong with that in this court's opinion in the united states versus cook implements of instruments is is an overly broad category of of items there is a particularly clause this court in the united states versus cook says that  this court can sever out of that the district court can sever out over broad clauses and still allow the other items to be used in evidence in other words that doesn't render the  the the delay our position is that governing the seizure and this is in the dicta and riley discussing the seizure of the cell phones in those cases that the appropriate analysis is under the illinois vs macarthur case and united states vs place in the united states vs place the supreme court found that an eight hour delay in obtaining a warrant to search the luggage of a passenger was was too long so that gives us context on what could be an earlier limit the language that my learned friend discussed comes from about ninety minutes may be too long and twenty one days may be enough time comes from the united states versus laced which is a case that deals with and points to the four factors that i mentioned earlier the duration of the delay consent of the owner the government's interest the government brought up the idea of order stops i love the fact that they bring that up  saw that phone or any other phone ever be used for purposes of drug dealing at most he has a reasonable suspicion but based upon what upon the idea that drug dealers keep private them the analysis has to be how long how long do you keep it that's what you think the issues yet how long do you but first you got that some reasonable particulars suspicion i'm going to you can't just take the phone but if you have some reasonable particularly suspicion you can