they please the court ashley litwin and mark sidles on behalf of darryl baca the government did not fulfill its burden here and the district court did not make a finding that this non limited warrant lee seizure phone was based upon any exception to the warrant requirement what the government is intending to do here is to extend the terry principles beyond where they've ever been extended before to a non limited seizure a seizure that was not limited in time or in place and say that that seizure doesn't require probable cause and only requires reasonable suspicion i guess in fairness though they may be called a back up argument or something but in fairness they say reasonable suspicion probable cause we had the latter even if even if we can't get the phone reason special we had probable cause to suspect that the phone contained evidence of some crime yes your honor they do make that backup argument and i think it's pretty in this case there is not probable cause to explain that to me sure well basically everyone would agree that when detective brown showed up and the other deputies at the scene they were suspicious they believed that something was going on and something wasn't right but that's not enough for probable defendant had a ticket not in his name he was shaking he was having trouble breathing when he was discussed with the officer he had a baggage claim in someone else's name and the court found that was suspicious there was reasonable suspicion he could investigate further but that wasn't enough for probable cause and if you look at all the other cases cited to by both the government and us in our brief in all those cases there is more in every single phone somebody has said that there was child pornography on the phone or somebody has pointed to shown in the defendant in a lot of these cases has pointed to an image or a third party has said on this phone for example or on this computer there are images there's contraband it's not what happened here which was just everybody knew something needed to be investigated well let's let's focus our attention it would help me at least if we would focus our attention on our timeline because there's a rock there's a in the report is that there had been shouts from a female he's asked whether there's anyone else they are he falsely denies that there is yes or she comes out and then so unfold and it seems to me that everything that unfolds that the officers know about up and to the point where at first babcock shows them  his right and shows them a video on his phone there's not a problem with anything the officers are doing at that point it's only much later when he wants the phone back and they keep it for preservation of evidence they one for the fact is that true that he without problems might have missed this judge prior knowledge but without prompting blurted out i don't know her age and there is no relationship between us well your honor that is contested because if you look at the motion to suppress hearing deputy olson who is the individual that claims that it was unprompted she says that as soon as she saw c i walk see a walk out of the trailer she said what is the nature of your relationship that was the first question out of her mouth and then she says he was being of a save and he didn't answer and then later he blurts out that they're not in a sexual relationship so to say that unprompted i think is not the correct characterization he did make that statement yet whether it's on officers are aware of that that informed the analysis of what that there was probable cause right yes your honor and that is definitely among the facts i mean again i think all of these facts are suspicious i think that this officer here like the officers and police and police he knew that there was something that needed to be investigated they know that she spent the night i thought before they before you asked for the phone back they've learned that haven't they well at that point i don't know if they had learned that she had spent the night they knew that she was there and said that she had been there and that they had been partying last night right yes your honor she knew they knew at that point that they had been out at a party the night before yet this was forty five in the morning it was in the morning yes your honor yeah to suppress hearing that that is normal for a sixteen year old girl to be wearing but your honor yes i mean i think there were suspicious aspects at the time that would have led to detective brocton should have investigated further which is why we have no problem with that that's not were contesting we're saying the facts that were no into the detective at the time were simply that something suspicious was probably going on here and that he needed to investigate further but the fourth amendment requires more and it's not just probable i have probable cause if they have probable cause to believe that there is evidence of criminal activity then they're entitled to hold on to the phone for as an existent circumstance for preservation of evidence while then they seek award isn't that right yes your honor the exit in circumstances but that has to be proven below at the district court and the government never raised accident circumstance they said preservation of evidence they did your eyes at that and exit that's just circumstance well your honor because it's the government's burden in this case to show the exception to the warrantless requirement i think more is required the need to say to the district court that we seize this phone under the exception to the warrant requir have magic words like that i mean it's not enough for them to say look we had probable cause to believe that there was evidence of criminal activity and we kept the phone when he asked for it back for preservation of evidence while we saw saw a warrant that's that's not enough to to inform the district court that was that what they're relying upon as is that circumstance argument and i don't think it's as simple as them not seeing the magic words i think it says it being their burden and them affirmatively pleading it if you look at the motion to suppress the defense argues that it wasn't seized pursuant to any exception to the war including the existence circumstances  and the government doesn't even respond to that they never argue and i ask you when they say preservation of evidence i mean i automatically read that as responsive as as an argument about exit in circumstances there are a lot of their different lines of existent circumstances argument preservation of evidence being one of them i viewed it as a very specific kind of response no we are certainly the i didn't circumstances here would have been part preservation of evidence but it would have we would have to know what evidence they were trying to preserve specifically which is why it is the government's burden to show what it is because for example if we're discussing president preserving this video if they have probable cause to believe that there is in fact an illegal sexual relationship between this adult and this minor yes and and and that video at least is is evidence about that that would inform  you know that determination then they could preserve it right well your honor they would have to show that there was exiting circumstances that babcock would delete the video and it would be not an issue that i just common sense that they get this is a person who has been deceptive from the moment they met him the first thing he does is is not something that they quickly learn is in fact the opposite of what he  presence i mean his they have they have reason to be concerned about with returning a phone to him that he would delete that evidence but your honor they had already returned the phone i mean deputy  handed it to bat babcock handed his phone to deputy also and to share the video she returned it to him and then gives it back and then she gave it back to him right so it's now but he gives it back to gives it i'm sorry he gives it back to her right so if he was going to delete it or refuse to give it back he didn't write he returned it to her so we know from his action it's only that it's only done to the point at which when he's then asking for it back and they say no i don't think so your honor from the russian isn't it isn't whether i mean the question it seems to me is really what they have thought of there is a risk and in terms of preservation of evidence if we give it back to him but then your honor he then offers to email the video to detective bratton and i understand that typically we don't have to look at alternatives for police in the context of seizures we do if you look at in police see the court says that whether a seizure is reasonable we have to look to the alternatives open to the police to conduct their investigation and in this case because we know from riley that we have such a strong possessory interest in our phone that when bad cop rallies concerned about i mean rally talks about preservation of evidence and says look it's ok for officers to detain a cellphone and provide for preservation of evidence it says specifically and prevent the deletion of evidence so long as she didn't seek a warrant to search it the problem with iraq with riley is that the officers were searching the phone without a warrant but it seems to me what the officers did here was precisely what the riley court said officer should but your honor in riley the phone was seized instant to rast and we have an exception under the warrantless requirement for that and there was probable cause there right i mean of course i understand we're arguing that if there was probable cause in this instance but i think that it is the point is just that it has to be under one of these exceptions to the warrant requirement and in riley it was search incident to arrest so i think that is different here but when riley discusses these privacy interests they go into the import that we have in our phone saying that an alien from above would think that it was one of our appendages back home i mean one of the arguments that we in rally was about exigent circumstances and preservation of evidence and the court said look he had conceded both sides had conceded in the court said that you know that that was or forgotten sensible as i think the word in the court used is sensible to do that while you seek a war the problem with riley was then going beyond that yes and i think saying that we have a heightened privacy interest in our phones above that of our possessory interest but my argument is only that the facts that they're showing riley show how important cellphones are to us that people put them in the showers but your honor good morning i'm a please a court josh rothstein on behalf united states and with the counsel table as a usa carmen lineberger the officers in this case had reasonable suspicion justifying the seizure that's not enough as it well you honor it is with respect to the initial seizure and it's different then put in place because in those cases where they turned on was whether or not the officers were diligently pursuing their investigation and in both cases the court said that there were less intrusive alternatives which the officers could have pursued in one case they said you could have had the dog waiting at the airport in the guardia rather than waiting for the bag to get there and then taking it over to the witness the victim in this case was already on her way to the hospital so i mean but weren't the seizures and both of those cases significantly short of the seizure here ninety minutes one hundred forty minutes they were yes to diligence i mean minutes here the time between when they had reasonable suspicion we believe that they had reasonable suspicion and they had probable cause at the scene but even if you did not believe that they had probable cause until they spoke with the victim at the hospital it was less than the time in police it was less than one hundred forty minutes from the time that they took the phone from the scene and met with the victim but you're the one who mentioned diligence means if they have probable cause at that point what are you waiting on arrest the guy get the warrant whatever why two days later as your owners aware than several cases they found that up to twenty five days is fine i don't i mean i'm just saying as to diligence i mean diligence is one of the factors that you're pointing to as to why sort of reasonable suspicion should be enough so i mean here we have we have a two day delay sort of unexplained so far as i can tell well that counts against you i get it for probable  cause you've got all the time in the world but as to reasonable suspicion you're telling us that we should look to diligence right yes but your honor i do not think that it they only had reasonable suspicion between the time that they seized the phone and when they got the warrant by the time that they even under the most conservative view of the evidence by the time that they went to the hospital spoke with the victim they had probable cause adopt points are really the time period where we're looking at reasonable suspicion is far shorter and just to look at the probable cause that existed at the scene how it long is that i mean so how long is it between the time that bad cock asked for the phone back the officer says no and they speak with the victim at the hospital and and unquestionably have probable cause and i understand your argument with which i think there is some power that they had probable cause even at the scene yes it was a very short period of time because the officers went from the scene to the hospital and met with her so they were pursuing the investigation diligently they were pursuing a warrant at that point they were just pursuing the investigation that's true so corporal brought in told the defendant at the scene that they intended to get a warrant and that tells me was that they would have gotten a warrant and he way even without the additional confirmation at the hospital but that does go back to a point that was raised earlier regarding existence circumstances which is that the defendant only asked for only contested when they said we're going to get a warrant then he said i want my phone back which is evidence of the fact that he was likely going to delete that information and as your honor pointed out the officers in this case did exactly what the supreme court instructed officers to do in riley where they said officers could have seized and secure the cell phones to prevent the destruction of evidence while seeking a warrant actually what the officers did here so is that is that the key fact that when they said we're going to get a warrant that he said i want my phone back is that what sort of cabins this case a bit because i guess there's some concern that if any suspect in possession of a cell phone automatically gives rise to edge and circumstances then you sort of got it in every case right i mean that this suspect will necessarily be deemed a risk to delete stuff off his phone but i guess that's what you're saying is that in this case what makes it a little bit different so it doesn't swallow the universe is that this guy really responded when they said we're going to get a warrant on a no no no i want my phone back now yes and in addition as just prior pointed out there were several times where they caught him in a lie he already lied about whether or not there was somebody in his cabin he in his trial or he lied about when he met the victim he had said how quickly do they know that that's a lie at the scene they know because the victim says i met him the night before to go to a party he told law enforcement initially the defendant that she came over late in the night i believe at two thirty in the morning and he wasn't sure why so all tells them at the scene her date of birth yes there's two things which are clear from the testimony that they learn at the scene they learn that she's sixteen or seventeen years old and they learn that she came over there the night before to go to a party with him and so he had law enforcement already caught him in those two lies plus they caught him in the law regarding whether or not she was in the trailer so you take that and he's oddly on and on is denied a sexual relationship something that they had not asked about that's correct so adding that to the mix adding that to the three lies  and adding that to lying about the presence we believe that alarmed at all of that together and would there be anything else we need to know constitute probable cause to believe that years and illegal sexual relationship between them we believe that at the scene that there was more than sufficient evidence to establish probable cause you have the content of that every day that would support that ok as your own at the scene they had the content of the call the law enforcement where on the cad report it reads stop stop stop indicating that there is some sort of non consensual encounter occurring you have the unprompted statement of the defendant regarding the fact that he's not having a sexual relationship with the victim you have the lies of the defendant including the presence of the victim her age when she relied the basis of the relationship you have the age difference between the two one is seventeen and one is thirty three you know the condition of the teen who appears to be under the influence and severely mentally distraught at that point to the fact that they had to call an ambulance to take her to the hospital you're the content of the trailer if you recall the victim came out and she had dried blood on her leg when law enforcement were given permission to go into the trailer they found blood on the bed which would indicate that this is sixteen year old was in that bed at some point between two thirty in the morning and when they arrived and you had her admitting her rage and that she had gone to a party with him the night before and you have so you have a sixteen year old girl going to a party with a thirty three year old man and you know the way you're describing this i'm gathering when we're talking about probable cause here we're talking about probable cause to believe that there is a statutory rape that has been committed been a sexual encounter between these two individuals and there was also a fear that the victim had been given drugs or alcohol by the defendant on top of that that's the crime in i guess sort of honing in on the likely crime the litany that you just described the likely crime at the end of that is statutory rape it could be it could be corrupting a minor there are several state charges which could be in play so so when when brought near brought into her when he i think testifies that the suppression hearing it wasn't until i got to the hospital and confronted her with the phone and she said oh there was a sexual relationship that i had any reason to believe that there was evidence was they say that there were videos of sexual activity between the two on the phone what exactly is he conceding there is he conceding only that i didn't have reason to believe that there was child porn or to sexual activity does that sort of run to statutory rape or not corrupting the youth as well i think that because at the scene he says we're going to get a warrant at that point he believed that there was probable cause regarding a sexual relationship between the two of them but what he finds out at the hospital is that there could be for there should be pictures and videos on this phone so there's the production of child pornography and one other point which i think may have been lost here which is that the defendant shows them a video and that video the defendant is saying is heard saying this is what i have to deal with all the time indicating that there is an ongoing relationship between them and unlike input g and place where yes there was suspicion that maybe the bag contained drugs here they knew they knew because they saw on the phone that there was evidence of a crime so that's honor we spent the government spent a lot of its time discussing at the scene whether or not there was probable cause right and it's all of the factors that are listed again i think reported to me of course and i understand that but even detective bratton testified at the grand jury which was brought in to the record at the arraignment that it was see a statement which gave him the probable cause to get into the felony that i mean he may say that but i mean it's an object event querrey that we've got to figure out right from the point at which it seems to me this is something we went over in your opening to the point at which babcock asked for the phone back and the officers don't give it to him the question is well did they have probable cause then yes your honor and i'm just explaining that i think that until somebody shows what on the phone there was going to be evidence of there is not probable cause at that point and it's not just probable cause again that's required it's probable cause and i see and i think that that is really important in this case because again the only thing that if they have probable cause that would to believe that there is an illegal sexual relationship which would not be as i understand it could be a number of state crimes could be involved in that not just statutory rape there could be sexual battery issues there could be all kinds  of sex crimes that that involve the age difference here you would you agree with that that if there was probable cause if they believed there was probable cause of a sexual relationship it would implicate more than just statutory rape of course your honor and if if there is probable cause about that then when they have reason to believe that that the video that they've already seen is it least some evidence of that relationship your honor whether or not they believed it would be some evidence of the relationship and i understand the factors that the government just said as to why they go towards that i still think that there was no exit in seeing the deletion of that video it would have to be something else because he offered to him not the video that it but if that video shows them especially when he says this is what i have to deal with all of the time that suggests a relationship and then at that point it's not really much of a leap to think that the phone would contain other evidence of the relationship right way around of course we could say that it could but i don't think that's enough for probable cause in a seizure because we don't even know what the government's worried that they're going to delete at that point the only thing that there was existence before at that point is this one video under under that of evidence at that point before the district court was this one video and the court has to look at whether or not it was reasonable to believe that babcock would delete that video and his actions in not only returning the phone but then also offering to e mail that video ha to be taken into account for this analysis you agree with the government that it's at the point at which the officer say we're going to get a warrant that he asked for the phone back yes your honor ok it is it is at that point and i and i would like to also quickly discuss this idea of creating a cell phone exception that if we don't go through this analysis to determine that there is actually exit in circumstances in this case of what evidence babcock would have deleted and whether or not the evidence of  would have deleted it which again is the government's burden i think that this court would be creating a cell phone exception to the warrant requirement saying that probable cause in of itself is enough any time you have a cell phone because someone could delete it and i think more is required  opportunity to respond to that argument if you don't have anything else mr when do you any questions thank you very much thank you and your case next case