thank you thank you please chord here old girl what's on behalf of timothy carpenter one of the change of time i'd like to reserve four minutes instead of three for rebuttal if i could do that place i have raised a number of issues on behalf of mr carpenter i'd like to address two of those related to the fourth amendment and collection of historical cell site data that we have  historical cell site data for a period of about five months including thousands of telephone calls and in and about thirteen thousand data points from mr carpenter about which agent has testified during t a privacy protection under the fourth amendment in this case and requires a search warrant instead of an order issued under the stuart communications act only based upon reasonable grounds  probable cause has become a tool of law enforcement used to with increasing frequency as of that time and since that time certainly in one foresman investigation presented in federal court it reveals where a person was located and that was agent has his testimony that that he was able to put the location of mr carpenter cell phone with then there were sectors that were identified as the sectors in which the robberies occurred the cellphone unlike the tracking devices that use did in and jones and certainly unlike the cell phone that was used in the skinner case before this court which was of a pay as you go phone and less sophisticated it is not just something that's always with an individual but it is something which is always transmitting belugas information which as it has all of the information presented court establishes is stored and kept by so phone providers well that it does seem like this differs in kind from say s device to somebodies property it is collecting business records held by a vendor with whom a particular person does business that doesn't mean that i'm not aware of any case where that activity by the government has been found to be a search or are you aware of any case where we submitted the twenty inch a letter making reference to the fourth in the circuit decision to grant the four circuit on the same issue we have here there but i guess other apart from that i'm really thinking more of the supreme court frankly which is where this is probably going is there anything in the court's supreme court's fourth amendment case law that recognizes this sort of government electively obtaining records from a business vendor does business with a person that is a search i don't believe that this precise issue has been been presented to the supreme court however in the jones the concurring opinions address these concerns and in speak to what was described in warship a case by this court substantially different than what is described in either the miller case or the smith case dealing with the third party doctrine just as in the circumstances of  dealing with a pen register being compared to the prior use of a telephone operator answering a call and in connecting the parties that the circumstance here has made a quantum leap beyond what was decided by the supreme court forty years ago and i don't believe it's any stretch at all to reach the same conclusion that the court did the fourth circuit in graham that in this case these records are created by cell phone providers without the real knowledge of any cell phone user and they're stored in together they provide information which describes the details of an individual's life from the interior of his  to that the course of his travels i think your point about the march of technology is well taken we have to i think we have to have a certain modesty in deciding these cases and not purport you know  lay down some principle for all time by it does seem that the supreme court has never extended fourth amendment protection to what we might call that a data i mean going back to envelope and what's on the inside there's a distinction between typing the numbers into the pen register and the content of the phone call i mean the court is always drawn a distinction between these extra all things which are not private in fact are not private i mean your client's location was not private i understand you're putting together a mosaic that we say oh you know you can figure out stuff about him but the court has made a distinction between these external things that are not private and internal content that is private and i'm just questioning whether this is the case for us to say you know what we need to go where the supreme court has never gone before because the cell phone  rationale that was used by the court in both of the right wing case dealing with cell phone searches another opinion written by justice alito reilly's exactly internal contents of the phone that is not cell phone tower location that's a classic distinction that the ports yes this case is something that the internal content of the phone that is transmitted to the tower and retain the records but cell phone company strictly about the tower which is and it's based on his location sitting in a parking lot across from the you know c v s or something going to watching the clock and i would like to know if i also just address a couple significant points i think with regard to the good faith issue which has been raised is that we can i want to hear the good faith because i want to hear your answer to war shack but i would like you to help us if you are proposing a rule i think in this technology marches on mortgage there is really no way to make a bright line rule here you step over there we're done that's not going to work here but we ought to be able to identify the parameters that could help us define a and i'm struggling to understand with what you think it is that would define what you are requesting we've got the voluntariness of the provision of information we've got the distinction between an at if we were trying to fashion some sort of a rule that would help us that would help us figure out a way to set a continuum because my problem is the supreme court is not there and we don't want to jump ahead and yet are all of the circuit court's going to let more and more data be requested years of data be requested overlapping cell phone arenas or the the smaller photo forgot the muscles yes cells is that develops these courts or are finding themselves in the position of seeing huge amounts of data huge amounts of information from the data gets more and more particularized this technology gets better so what are you suggesting to us we do to create a way to handle the at pinning it being taken up by the supreme court or the legislature well what one criteria that is referred to in this is to sing wishing factor from the davis  deterrence where it has not been clear to officers here and assistant us attorney what exactly the criteria are that should be applied it is that then that the detail of the information described in these s parking lot but in their home in a church in a bank or wherever they may conduct their daily affairs and those i think are the essential criteria yes that's fine go ahead i of time no i was just going to say to the degree that part of the underpinnings of what you're arguing is that it sort of takes the person by surprise there they're not aware that all this is going on circumstance certainly the individuals who were there that he is exposing himself to the up survey other people it's like in skinner the person was on the highway driving people could the agents could surveil the car it was his as it was driving down the  road in the case of the cell phone data that we're that we're addressing here and it is the combination of this information not not the individual call itself but the record of that call and what it represents together with all of the other data points that are put together of the kind that agent has is going from one case to another now testifying a bit that allows the government to obtain a record of what a person is doing before they're indicted and that furthers the investigation not only allows them to prove attempt to prove guilt at a trial it's really much more invasive than say just somebody being surveilled for a long period of time i mean i know it's five months but i mean you know that law enforcement often surveils people for extended periods of time is this different in kind from the information that i mean i would think surveillance provides more they see you when they're interacting with you know which door they're going in as opposed to within a long period of time just like in a title three wiretap there would be a requirement for many people to intensively record in detail the information here all that was required was the simple application with no details and the only conclusions in fact no identification of my client or his telephone number that that he was related to any number in the application at all are we saying ok the constitution requires a certain level of difficulty for the government to get the same information they can get through means that are undisputedly permissible well that there is no internet there's no difficulty here for the government to to use a search warrant to establish probable cause that they have it i'm talking about surveillance same information it's just harder to do i mean is it that hard that difficulty that's what the constitution requires you know put them through the paces we'll hear that the government is able to after the fact collect historical information that  not only goes to where the person was on an afternoon in their car that where they were inside a building inside a house where they went to sleep at night and where they woke up in the morning i think that many people would be surprised that the government could obtain that kind of intimate detail about the conduct of an individual's life could you i understand what you're saying but if you back it up in time all these other techniques were a surprise when they were first revealed that again you're back to the march of technology if this was a surprise now it won't be for very long will permit the government to with a showing as inadequate as was the case here to obtain that almost five months detailed information about my client's activities and i think that that's  i would like you to have an opportunity to respond to war shack and why the good faith let's assume that it was a certain an unreasonable one why would good faith not apply here under our present yes way it would not apply here because of the third often stated exception to the good faith rule which is where the affidavit is so lacking in probable cause to render an official belief in  unreasonable the affidavit at the application in this case that there are three of them and they're not all submitted the same time but they remarkably contain almost identically the same information in a boilerplate fashion  there is no detail there is no mention of of my client involvement use of information as compared to what judge donald referred to in the scanner case as a nineteen page detailed affidavit it's just not present here and it's primarily for that reason and because i think that that the rule out to serve its constitutional purpose as been crafted by the player judicial decisions to provide future warning to to the governmental entity the law enforcement team including assistant u s attorneys that they cannot proceed in this fashion to obtain this kind of detailed information based upon an inadequate showing that with his argument about what precedent we have from the supreme court or elsewhere i think from the supreme court itself the closest case we have a purpose in versus city of charleston that was about the reason much attention of privacy in medical records diagnostic test results held by a hospital those are results collected by the hospital they are instance sometimes metadata about the state of a person's body but the court very clearly said there is no reasonable question at all about the expectation of privacy in those records a warrant is required and then it went on to conduct a special needs analysis which is is not at issue in this and two the nature of the information in other words the privacy interest in it and here the records are quite different than what was an issue in either of those cases particularly different from the dial phone numbers issue in smit there somebody was inputting manually input into a rotary phone the numbers they were dying they saw them on their monthly bill coming back they knew they were conveying it through a switchboard operator or the automated equivalent here no person is providing their location information to the phone company it's a background person is going to realize ok you know the tower probably know my problems and all that basic level of sort of intuitive understanding that there are towers out there can you hear me now isn't enough to get this case past past smith the location information does not appear on a person's monthly bill in fact you cannot get it from your cell phone company even if you ask the phone company may well know before you do where you are if i'm with this new washington d c and i pop out of the metro i new exit that i've never gotten out of the phone company's going to know where i am before i am and i think also importantly for the thousands hundreds of thousands of american to know your smart phones there's a location privacy setting on those phones that will block their party applications google map from knowing where i am but it has no effect whatsoever really misleadingly no effect on the phone company's ability to log and retain my location information so there's a kind of people know when they're in their home when they're wrong i mean they they may or may not actually frankly i think i think the voluntary some of these things i think are becoming obsolescent third party voluntary yes but anyway i don't want to have well that that the second dimension is the nature of the information in the privacy interest in the five justices in concurrences and joan spoke very clearly to the privacy interest in longer term electronically collected location information and i know that those justices analyzed that case as a third party doctrine case essentially it was about exposure of location over time to the public and the five justices said this is not the same as the limited information at issue in knots and kero about short term trips on public streets likewise this is not like the discourse decision  a less than three day trip just on public highways a single state to state trip this is months worth of thousands of location points that in aggregate show extraordinarily sensitive parts of a person's life and in particular can show information about location in a private this isn't remotely that sort of thing i do have one question for you i mean the government has really created a lot of headaches for itself by having this blanket approach to getting these records let's say they figure out you know what i mean the robberies happened on six different dates we just want the records for those six states they are fact we just want him for four hour period each of those states would you have no constitutional objection to that i think the constitutional objection there would be much  weaker i think the one one place temporally to draw a distinction is the period of time that a police officer working a normal shift could have visually observe somebody and there's no no case support for that but i think that's enjoying the kind of distinction the that we don't talk  alito impressed upon the courts in jones to do which is to ensure that the level of protection afforded by the fourth amendment at the founding remains vital today as technology advances the records here are quite different judge guy and this goes to your  question about normal person to person surveillance they're different in a couple of respects from what police officers could have done in the past in one point respect and justice alito spoke to this quite entertaining liam jones at the founding two hundred plus years ago it would have required an immensely tiny constable in the back of a carriage with incredible fortitude he said to conduct that kind of what is today g p s surveillance here you would have to have a i don't know a micro constable inside the cell phone in my pocket stay in there for four months five months to collect this information it's also different because here we have the time machine effect one person in fact never knew that they might want to conduct the surveillance at the time in instead at today they decide  wonder where this person was on a minute by minute basis for mr sanders this was the location and an average of once every six minutes every fourteen minutes for mr carpenter i wonder what they were doing at that those intervals going back four or five months in time that's just incredibly new power and it's not about the difficulty it's about the level of intrusion that new technologies create and ensuring that the fourth amendment protections how would you define the level of intrusion if you are trying to fashion a rule is it do today voluntariness is important and these kinds of records like other kinds of records and i'll note that the government made this same third party doctrine argument in the worship case about e mails held by a third party service provider and the court there talked about voluntariness and also talked at great length about the nature of the information the the privacy interest in it now the court there did talk about content versus nine content information is there a way to draw content versus non content in this context well i think that same content versus not known content is really just shorthand for level of privacy interest in the information there there are clear analogies to the interior of a letter or to the content of a phone call it made it a relatively easy case but here the court in in jones has has at least five justices have sketched out the privacy interest for all of us already at least longer term electronically collected location information  intrudes on a reasonable expectation of privacy and i think that in order to fashion a rule that is going to provide protection going forward this court is absolutely essential this court draw that line in terms of location any other factors apart from the nature of privacy doesn't that it matters and it is certainly a factor for consideration but it's not dispositive and in a series of cases the supreme court and courts of appeals have held that that the mere fact alone of disclosure to the public or to a third party doesn't end the inquiry in miller and smith the court was clear that that that wasn't that wasn't the basis they looked at the nature of the records and the voluntariness the second one circuits for example of hell that files maintained and created by a lawyer about their client their business records in some sense but they require a warrant can't get them with a subpoena of supreme court ferguson held about medical records there's a recent case from the district of oregon talking about prescription records held by a secure state database that the advance of technology in this area these records are from five or so years ago today there is a greater volume of records like these being created not only for calls but for text messages for data connections like to check into e mail and even increasing passive registration connections with the phone network that runs totally in the background the precision of the records is increasing as more cell towers are being erected including cells or micro cells and so the the volume and sensitivity of these records is only going in one direction we know where it's going so even if this court thinks this is a close case on these facts i would urge you respectively respectfully to err on the side of greater protection knowing that the records from five years ago are pale in comparison to th good morning your honour's evan cameco representing the united states i would actually like to start for just a second with a good faith argument and then move on to the fourth amendment search question in response to your question judge strands on the good faith argument the only response that carpenter has here is that the affidavit was insufficient the affidavit very clearly says that we have somebody who confessed to committing a series of robberies over a period of time has said there were three people primarily involved in fifteen others on the stupid that the requested records will assist in identifying and locating the other individuals believed to be belonging to involved in the armed robberies and a sentence later says the information will therefore provide evidence that timothy explained these are the people who have been as further it mated that others involved with the armed robbery were not taken into custody when he was arrested yes your honor i agree there is no specific sentence that actually says and then the names of these people and then he gave these phones i think it is very clear from the affidavit that that information is here more importantly the same question arose in the worship case and if you read that discussion the worship court upheld the sufficiency of the affidavit even though the name of the suspect did not even appear anywhere in the application the final point me understand how it would be good faith run a usa to apply for this after reading the war rorschach case which has found some portion of the constitution yes your honor the worst case hell that the good faith analysis applies as long as the store communications act was neither plainly nor obviously unconstitutional that court held it was not even and clearly unconstitutional as to content because the court had to go through a complicated thicket of analysis to make a decision about whether or not this was a fourth amendment search clearly in this case had nothing else there is a complicated thicket of analysis almost every federal court has come down in favor of saying there is no search here and as i was just in a minute the supreme court has made clear that this kind of information is clearly covered by the third party records doctrine so  found a howling how has the supreme court made clear that this kind of business record is simply a business record that ought to be available yes your honor two answers the supreme court has consistently used in refer to the third party of different cases in middle ear not involving cell information but the only justice who has ever actually addressed coming back to judge catholics opening question the intersection between the third party records doctrine and the march of time or the march of technology is justice sotomayor in her sole concurring opinion in the jones case and she recognizes the tension and her response to it is she says it may be necessary to reconsider the premise of smith and cites the dissent she herself recognizes that this kind of material is covered by the current scope of the third party records doctrine and maybe the court might need to go back and reconsider that premise now the supreme court can do that of course this court has to apply the case law as it now stands the other cases cited by are opposing counsel are in opposite wryly in this very first footnote says clearly there was a search of the cell phone this opinion does not address other circumstances in which the accumulation of digital information might be obtained where there may not have been a search and later in the opinion specifically distinguishes this case basically saying is smith there was no search unlike in the r case the ferguson case that mr nestor refers to ferguson was a government search the facts of ferguson involve a state owned hospital working in cahoots with the police to devise a mechanism for unconsented analysis of pregnant women and the majority clearly holds that that is exactly right government acquisition of information case surreptitiously so not a third party record structure case justice scalia in his dissent thinks that there wasn't enough police involvement to make it a government acquisition case he views it as a third party records doctrine case and he applies the third party records analysis so if next year cell phone towers become more  and you can and you can determine where in your home that person is standing by getting the records that every cell phone company keeps are you saying it seems to me that under your analysis there's there's no line that can be drawn i want a year of this defendant and now you know everything about where the defendant lived where he slept where he ate you see what we're struggling with here in the last hour it feels to me that your argument just permits of no limitation at all on the advance of technology and the duration for which you can request tell me how your right would be in any way limited by still in the privacy interest of the defendant yes your honor if i may three different responses first i agree with the premise of the question that as the third party business records doctrine stands today information that is obtained about through the transmission singles of somebody's cell phone as they connect off a local tower however local that tower is would qualify as something that once the third party creates a record of it the government can obtain with a subpoena rather than who are on the second point however is this court to make a judgment based on its understanding current technology there is no clear or the facts of this case because your honor technology could easily run in the other direction sprint could tomorrow develop a way of boosting the single power of any given cell tower or making it work more efficiently so that it could handle the load of more cell phones with fewer towers or at least the same number of towers so the notion that inexorably we're moving towards this orwellian future in some sense that is entirely speculative th roger that's why other courts have held that congress is actually better situated to deal with this kind of question absent distorted communications that this kind of information could be obtained through a general administrative subpoena to the general reasonable standard with no reference whatsoever to the specific defendants involved in a particular case or any other the specific facts so you think under the existing law your position is that merely by alleging a reasonable connection to an ongoing investigation you can get unlimited cell phone in permutation records from companies white male not exactly right i was saying if there were no storage communications act my point was that congress  actually ratchet up the showing that is necessary to get these rappers which indicates that congress is well positioned if it wants to to say from among all of the different kinds of third party wreckers there may be reasons to treat cell phones differently congress has already done you got the take the time that you actually got five and six months that there is no nothing problematic even after skinner's discussion of i think what did it call it comprehensiveness of the tracking whether that's unreasonable under the fourth amendment right now you say six months is reasonable and the fourth minute period your honor yes two things first skinner is distinguishable because skinner non involved acquiring information from a third party  involved the governments are officially itself doing the surveillance so the timing may be very different under those two different scenarios the court in many different contexts not just this one including even consent dr has made clear that sometimes there is no search simply because of the way information is obtained completely independent of the substance or you for your question the duration of the information obtained that's the way the fourth amendment works has always  leading examples systems will consent might be one obviously even after riley you can consent to have the i'm in search of phone and we're not going to carve out a consent an exemption to the consent doctrine just because you're consenting to a much do you can give away your privacy interest you can your honor but that's actually just one applet what non vollard party records doctrine is an application of that because you have voluntarily disclosed information to the public so it's not i mean  question when you're pumping gas at a at a gas station you essentially are putting yourself out there in a way that people can't absorb you or excuse me when you walk out your front door that's that's correct i will and by the way with respect to the quality of the information and this may be important as well the only information is what i'll call general vicinity information at least under current technology asian hesse the only person who testified in the actual record of this case did that even in detroit where the towers are closest together they're basically half a mile to a mile apart which means that the sector size that these records indicate somebody is in is either a half a mile or a mile in this direction at one hundred twenty degrees probably that direction and then closing off we're talking about a square mile maybe a square half mile this idea that from that information you can glean whether somebody is inside a space outside of space moving in or outside of a space the information is not granular in that way the way g p s is and what you and your honor that many other applications of the third party records talk to and reveal a great deal of information that might be thought to be sensitive and in fact reveal a lot more about your location credit card information for example every time you're on the road and you swipe a credit card you are indicating where you are exactly not just general vicinity but exactly when you were there what you were purchasing the name of the for some of this information you may not even know when i go to a gas station and i swipe my card i generally don't even know the name of the company of the gas station i pulled in because i saw the sign this it was cheaper gas than anything else i may not know exactly where i am all of these are third party business records the internet that this court talked about in worship the same thing this court and other courts have held that when you use the internet you transmit information about who you are and where you are transmitting from an internet protocol  yes your internet pornography exactly exactly the many investigations about child pornography is to some of those folks when yasser show up i'm sure it is and it's because when they filmed it you think the fourth circuit was wrong  split and let me explain that the court and graham did not say well we don't believe that people generally understand that they're connecting to local towers the court said that's not our issue we think the problem is that people are not aware of the specific tower that their phone is interacting with and they do nothing to punch in that information that lack of specificity is true in all of the other examples i just gave when you run a credit card you don't do anything digitally or consciously to reveal the time the location the name the nature of the store when you send an email to somebody you don't do anything digitally to reveal your own internet protocol address my assumption is people generally don't even know w way over to to a place where if you followed their reasoning they would carve out a huge exemption not just for cells and data but a huge exemption for all of the other applications of the third party business records doctrine been routinely used by the government for at least the last forty years since the smith and in most cases i have one one saying i don't want to interrupt this interesting discussion on the intellectually most interesting issue in this case but it comes down to the fact that this is a specific case that we're doing so before you're done where do you address at least briefly the contention that even without this evidence there's enough in the record to support a conviction absolutely your honor so there were seven different robberies charged so side information is only used in four of those seventy one of them count seven both defendants are caught on video surveillance tapes right across the street from the store as they're engaging in the lookout so that clearly establishes their physical location even independent of the cell site look at the data that leaves counts one three and nine for carpenter for each of those counts there were eyewitnesses  italy accomplice eyewitnesses that gave quite a bit of detail about exactly where carpenter was and exactly what he was doing that located him as a lookout in those robberies but equally importantly your daughter carpenter and sanders are charged with aiding and abetting the robberies so the jury heard evidence not just of their role in the lookout but in their role in doing a whole bunch of other things carpenter is generally involved in planning recruiting the team stealing a car or a van to and you know transporting the people there providing the long three bags he did all sorts of other things so even if one decided we're going to throw out any evidence whatsoever that indicates he was in the vicinity of the robberies at the time there is still so much  contradicted information in this record indicating that he engaged in other acts of aiding and abetting it is very clear it jury would have to find the author of reasonable doubt that he's guilty so i think the harmless error doctrine is an alternative way besides the good fa which is does come back to this question of lying john because i understand that this is a really important in and troubling issue the difficulty is we do understand that modern technology is creating digital information that didn't exist before and the question is how to handle it it is not at all clear that the right response is to expand the system notion of the reasonable expectation of privacy to cover it as justice alito noted in his concurring opinion which was joined by three others in the jones case the advance of technology cuts both ways on the one hand we're revealing far more information about ourselves than maybe her parents could possibly have imagined on the other hand we're doing it because there are great advantages to using the technology and he specifically says it may well be that society accepts the trade off to diminish an in their privacy precisely because they want all the advantages these modern technological devices can provide i mean we do see that you may not only does have to do and that's ok you know i mean i understand that sometimes you know or sometimes i'll buy something from the things and your honor it's the price of doing business on the internet is the price of getting all the wonderful advantages of being able to use the internet for information and to make purchases and as justice lead legal indicates it may well be that we just all have a different understanding now of privacy that's a particular reason why this is an area of the law where a legislative judgment about under what conditions certain kinds of information ought to be attained is most appropriate if somebody is going to put a limitation on how many days of information that would be in this case coming back to judge guy's underlying question to focus on the facts of this case the informer said that he himself was away or involved in a different robberies that occurred between december and march the government ended up charging only for those robberies so we already know that there's four uncharged robberies in that same  timeframe that explains why they govern this case felt it was important to be able to get the five or the six months worth of data because it was not sure how many more robberies were committed by the same people and exactly at one point in time in that time span so the government in this case did not engage in overreaching in any way and if for example did not ask for five years worth of data or one year's worth of data that even exists you know record i mean these companies presumably keep this stuff so that is correct your honor we have any idea how that because there are perhaps more unlimited ways to access these documents that when there is incumbent upon you to apply for a subpoena by providing specific information about the person who is the target of that yet rather than the generic paragraph and in the end we think we might get something on time they say anderson timothy carpenter but in fact our informant told u timothy carpenter was involved in and robberies on this state this state in this state and therefore we're asking you to give us a subpoena for surrounding time periods because we are investigating additional robberies your hon i agree that the affidavit could have read that way as i indicated the affidavit real question is does it need to know your honor the court in worship specifically addressed again exactly the question you're asking and describe the nature of the affidavit in that case without any reference whatsoever even to this suspects let alone to exactly what level of detail a suspicion there was for any of these particular suspects and the court of worship said this still satisfies the statutory standard and that's why the court applied the good faith exception to the exclusion rule in that particular case so on the basis of this application did you were you able to access telephone numbers for a whole group of people beyond the two people ninety at the end that you said you might we've got a bunch of different people involved and we think we're going to get some more information on sanders carpenter and other known and unknown individuals what i'm asking you is about filing this document were you then free to choose the telephone numbers that you requested information on your honor the affidavit is self list specifically the phone numbers if you go to the very first page that are covered by the application it's it it doesn't randomly allow the government to come back later and say we want to add another name so based on this you got nine telephone right i think there may be a different number a different number of phones each of the different applications ok but there is a discrete very specific list of exactly the phone numbers that that are going to be it could be beyond sanderson carpenter for those nine numbers i don't know the answer that question it is true that this application specifically refers to sanders carpenter and then says something about other individuals i think that may be referring to the fact that by finding out more about where sanders and carpenters were and how they use their phone one could deduce other information but your honor i don't i don't have any more information thank you response the judge guy's question a bit harmless error in this case i think the first thing is to keep in mind the the standard which is that there must it must be established beyond a reasonable doubt that this evidence did not affect the jury's verdict if it's found to have been received in error and violation of fourth amendment it's then significant to consider that in this case the government's witnesses were substantially all defendants who had entered into plea agreements with the government and testified in return for that kind of immunity were subject to credibility attacks for that reason the third reason is that the government's theory of this case was that my client as well as timothy sanders played a role of being lookouts or organizers but not going into any of the stores so that their role in place in each of these robberies was established only by to me it's a three i guess with one in one one case and that is the testimony of these co defendants this cell phone information and in the case of the robbery in ohio there was a video from a store not the store that was robbed however so there is no video which places timothy carpenter in any of these stores there was no witness from any of these robberies that were identified him as being a participant that the second thing i'd like to address is the what is referred to as the affidavit and i don't want to sound like i'm quibbling here about use of terminology but it's called an application it's not an affidavit as is the case and search warrant signed under oath by a law enforcement agent providing his knowledge of the factual basis for the  search warrant for which there he's seeking from the court but that relates to it's of course signed by an attorney based upon the attorney's representations that in this case mr o'br relationship or connection of my client or mr sanders to any of these events in any way at all any way at all but then goes on to say that this information which he describes in that fashion the records will assessed they should yield and therefore further the federal bureau of investigation information that it's for those reasons that i think that it is this kind of an approach to to use the statute and i think misuse of the statute to to seek to obtain an order here instead of has a search warrant if they had probable cause that requires this court's intervention to provide a rule which will guide future conduct and therefore all of those reasons that i would request this court to reverse the decision of the the district court and in order that this information should not have been received another tense and that my client should then therefore attend a neutral very well thank you thank you earl whites were aware that you represented your client under the criminal justice act and i do want to say that i think your advocacy in this case both in your brief and here today is a