end i'll just put the mentions a few things about the uncertified claim with respect to the entry into the hotel room what we have here is a situation where it's four in the morning and the officers are specifically told that the suspects are we've cited two cases from this court which seem to emphasise that if the police have information that the suspects are sleeping that significantly diminishes any agency and so for that reason alone we think that the court doesn't even have to get to perhaps more complicated cell phone it's our position that even before riley what the officers did in this case clearly violated the fourth amendment what happens after they go into the hotel room is that the order everybody out of the hotel room they then run record checks i think they also perhaps do some type of curbside identification all other outside the hotel room there i think for officers there the suspects are now secured outside the hotel room and then they go back into the hotel room and they se you cited maddux demonstrates that if the suspects are already secure if they're no longer if they're away from the cell phone or from the object if they're outside of the room and they're secure you can't then go in and do a search  it was entered into the arrest then there's no need to find exigent circumstances that no i did not firstly have to find as in circumstances to get into the room that's the first thing so you do have to first find that there was action circumstances i don't think the court can avoid that that issue after the court can avoid it you can just say look we don't have to determine that because we think that the search the seizure and search of the cell phone was illegal anyhow so we don't have to get to the edge and see but i don't think the court c and see in most of the cases what you see are like on scene suspects you fully into a home or room where you're here these loud crashing noises coming from the room so you know that something's going on maybe they're starting to destroy evidence or something he the first is yes we don't think that the officers could do a permissible search incident to arrest when they have removed the suspects from the room at that point when they're secured separated from the room the officers can then go back into the room and conduct a search and seize mr jones his cell phone to search incident to arrest oxman disappears because the cell phone is not in his immediate control or possession it's not within his reach or anything like that is that clear the record clear that they  waived the search and seemed to rest up from below they never raised this but what the documents that we do have show is that yes one of them says he brought them out to the a different part of the front area of the room another document says the actually brought them outside of the room and then records checks and then did a curbside identification then well after all that's going on they then go back into the room and they've seized the cell phone so it's our first position is that that is not a valid search incident to rest because they've been separated he's been separated conduct a search incident to arrest if the cell phone was on the defendant's person at the time but in this case the cell phone wasn't on his person it was in the hotel room he wasn't he was totally separated from the cell phone so it's opposition good morning honors emily kiefer for the united states in this case the petitioner jones has failed to produce evidence or even allegations sufficient to overcome the strong presumption that his trial counsel performed competently because this case arises and he has context it is the petitioner jones's burden to prove that the searches and seizures here were illegal at each step along the way jones has failed to meet this burden and has failed to show that a suppression motion would have been strategically advantageous as an initial matter probable cause an egg exigent circumstances justified the entry into the motel room because of that the arrest of jones and the seizure and search of his phone incident to arrest were proper under then existing binding appellate authority so that oh ok let me stop right there first of all i'm probable cause except a small child what does that mean your honor the record below indicates only that there was a small unknown child in the room and the officers were concerned about the safety of have to have to hold a child even like that that's not in the record below here who had just assaulted and abused a young girl the gun her how old she was fourteen year old are trying to pass rate you might but she was working so you think a person will say who you know a prostitute the fourteen year old is likely to attack twenty hindsight as we have to put ourselves in the shoes of the officers who are confronted with a near hysterical child who's almost unable to communicate with them the record reflects that she was in tears she had difficulty communicating and what she was able to communicate to officers was that there was a small and no child inside the room and that is what in large part informed officers as they documented at the time that they were concerned about the safety of his small unknown child in the  suspects wake up and find the fourteen year old victim missing that they could then destroy the evidence yes your honor they could do so as the district court found within a matter of seconds by smashing the phone manually i am not familiar with any technique for recovering evidence in that scenario moreover and more importantly it's the defendant's burden it's the petitioners burden here on he vs review to establish facts that if true would warrant he is relieved and not only that is the defendant's burden to show that the searches and seizures here were illegal and he simply has not done so so the exigencies presented to the officers at the time of arrest were both concerns for the safety of the unknown child in the room as well as concerns about destruction of evidence in their so under then existing binding appellate authority the officers had the ability as this court recognized in lastic to search a cell phone that was on the person of the defendant at the time of arrest this court's authority and anderson extended its search incident to arrest doctrine to items within the wing span of the defendant at the time of arrest now mr coleman my opponent states that the search incident to arrest action does not apply when the defendant is removed from the room but at the time that this arrest occurred that simply was not true this court precedent in a trio of cases united states versus smith at three eight nine f third nine four four united states versus had seven at one hundred f third one four zero nine and united states versus turner at nine to six f two d three all three of these cases deal with circumstances where the search incident to arrest did not occur immediately at the time of the search in hudson the because there was not a long delay between that and when the search occurred the search was considered valid likewise in anderson were they were they i believe they were searching for contraband in anderson they certainly were searching for contraband what they found in a suitcase next to the defendant after the arrest was affected was cocaine and another record here reflect the timing your honor the record does not reflect the timing other than what we have here is even if you take everything that the petitioner has a currently ledged in his legal filings it would still not bring it outside of a search incident to arrest what the petitioner has alleged in this legal filings to this court is that the search occurred before his arrest inside the hotel room the situation is there for quite different from that in commute where it was the station house search that occurred an hour and twenty minutes later but your honor more importantly than any of this is that a search warrant was obtained in this case so even if there was a problem with the initial search that occurred incident to arrest a search warrant here was obtained shortly after the defendant's arrest officers did what you would want them to do and obtain a warrant that was completely independent of any prior search that had occurred and was based solely on the victim's statement corroborated by accomplice testimony from chandrika durham so the inevitable discovery doctrine here applies and the search and the evidence that was admitted to trial all was admitted pursuant to this search warrant the forensic examiner who signed the affidavit for the search warrant was the same person who testified at trial and admitted all the physical phone evidence at trial everything at the same the same probable cause that mr coleman said his liking for that and create all that has to support issuance of the warrant right yes your honor and i believe that there was probable cause  search the phones that had been seized so probable cause was found by the judge based on the same statements that the victim made to the officers and that were corroborated on the scene so probable cause to search the felons was found in a warrant and that initial search of the phone if there's a problem it's claims by the fact that there's an independent warrant the warrant makes no mention at all of any prior search so even if the prior search incident to a rest of the phone was deemed improper all of the evidence that came in at trial was properly admitted pursuant to the for this up by the way the search warrant you're referring to was the one that was the subject of your motion for judicial notice roy correct your honor  until appeal in any event even if you excuse the waiver the search warrant they say it's completely independent it's not it's based on the seizure the illegal seizure of the cell phone the search warrant says we want to se arguments as well but there would be because it's our position that once they removed the defendant from the hotel room they then needed to get a warrant to seize the cell phone in the hotel room they never got a warrant to then they say hey we have this item that we've illegally seized and we want to search that's not independent the entire affidavit for the war is based on the illegal seizure of the form but even if the court disagrees with that when they did is then after they seized the phone they searched it then they interrogated my client who at first a nice culpability and then they say hey look we found the pictures in your phone we know you're lying then they get him to confess to that and then several days committal three or four days after the illegally searched the cell phone they went ahead and got a warrant in this court said no never will discovery doesn't apply the same thing happened in long london in london they actually did it much quicker they did it the very morning after the illegal search and this court still said inevitable discovery court it's our position it's waived but even if you know but even if the court excuses the waiver if we have all these are in this is why the warrant doesn't circumvent anything the other thing i just want to say is that the government in a normal over the government keeps on saying that i haven't met my burden but the problem that we have here and it's continuing today the government got up here i think they just cited three cases they said to you the market was incorrect there's some three cases that they didn't cite before so i don't know if those three cases on point i think they said hudson smith and turner or something i don't think you cited those before so i have to go and look at them now but they keep on making new arguments i say you know i said that the search was illegal because they had no warrants they come in and it blow and say it was a probation search so i responded i say no what he's not on probation condition then they shift to a new theory later if they're the ones who know what the officers did and why they did it i'm not here i can't articulate all the exceptions that they want to rely on it's their burden to justify the searches and they're not doing it it's my burden to say there was a warrantless search we all agree there was a warrantless search there was a one with century in the room or one with seizure of the phone and i want to search of the phone that's all i can do they're the ones that have to justify why those warrantless searches and seizures were valid it's their burden to do that cations and in the future if you're going to argue cases that you've never used before you should advise your opponent you're relying on those cases so that we can have an intelligent argument  you thank you