made please the court my name is bo grindley and i represent the defendant appellant air curtis mr curtis appeals his conviction at trial on two bases and i would like to first today address mr curtis a challenge to the in tame attainment in the use of cell site data information at that was presented against him in his trial now the very issue that mr curtis raises on cell site analysis is currently pending in the supreme court in carpenter versus united states oral argument on the issue has been heard and opinion will be forthcoming and that opinion whichever way it's decided will be decisive on the issue of whether the gathering of cell site data for more than two hundred days which was used against him a trial constituted a search to address that first question of whether it does and i think the answer is going to be that it  does after reading the material and looking through what was said at the oral argument more than two hundred days of payment of cell site data is basically analogous to twenty four seven court under the stored communications ag there's the august fourteenth two thousand and thirteen order from chief judge because studio but it doesn't the government has said that that order didn't produce any evidence it was admitted it trial and there's an earlier order actually from judge to studio and there's an even earlier order i'm not mistaken from then chief judge holderman so did are there motions to suppress relating to all of these orders the motions to suppress related to everything because the position taken by mr curtis was that in each instance these constituted searches that require a warrant so i think that's clear because i was trying to see whether he site data analysis written large and that would have been an objection that applied to wall of the orders that came out on the basis of the store communications act so i think the objection covered everything because they were talking specifically about the entire subject matter of cells like data gathering and analysis now the carpenter case did you think that that raises the question of any kind of good  exception to the use of this material well that the good faith exception is is something that was not raised in carpenter it's not one of the issues under consideration it was however addressed very briefly by justice alit counsel for carpenter at the end and what counsel for carpenter indicated at that time was that that was a matter that would have to be taken up on remained after it determination was made on whether or not  this constituted a search rare but it's clearly before us the government has certainly raised the government has raised it now i have trouble actually seeing the government marching in getting all of these orders from the chief district judge judges a ca in seeing why we should not undergo a good faith inquiry and why it wouldn't be satisfied here there's a couple of reasons that i think are important here and the first is that the case the government relies on for good faith analysis when a statute is relied on that gives a procedure for warrantless searches cruel and crawl is a case that in the ruling in cruel applied to administrative statues and administrat searches and in los angeles versus patel the supreme court gave some guidance on what constitutes administrative statutes and searches so why should we think the supreme court meant this so narrowly the court takes a tiny number of cases every year and we often at our peril read what they have to say as you know good for this train only i'm not sure why it's well what i'm saying is the supreme court has hasn't dorce the idea of taking good faith into account in a number of context certainly the leon context crowell context it's  we i think if we don't understand that they're saying that you should allow evidence in and if there is good faith because there will be no deterrent purpose function there won't be any reason to do it is something that one of the reasons that they said we quit ok and we're not going to have a situation where the legislators passing a law and there is no real opportunity for judicial review which would just o'connor argument assent the one of the reasons for that is because we have three compliance review because these people can get an injunction the very people the licensees that are affected by the current statute the people carrying around cellphones do not have any opportunity for preclude plants review it's totally different b with the cell phone providers who don't have standing to speak for those people and so the very thing that the crow court said well it's going to be ok because we can still get judicial review over these over the constitutionality of the statute is the fact that we have three compliance review here to find good faith in this instance is to explain what the supreme court found in parole and that expansion could would create a situation that's very problematic and would take away basically judicial review in a lot of circumstances consider this and here you are i mean you know why why wouldn't it come up this way in because in the future what's going to happen if you find good faith in this case then down the line everybody's going to know as long as they follow the checklist of procedures that you're following the statute there's no basis for us to challenge not if the supreme court rules otherwise and carpenter i mean that changed but the supreme court's not going to rule in carter they've said they're not going to address good faith but if they say a warrant is necessary yes they will say that i've been going forward people who don't get why aren't sure to have a lot of trouble showing that they acted in good faith and going forward that's true but the problem is if you expand croll to apply to this  cross also going to play to every other every other non administrative statute and the next statute maybe a lot maybe do a different one and what you're going to end up with is a situation where the legislature can see the legislature passes a statute that says we leaks the constitution but if cruel is expanded to cover curse and all and anybody who's doing this looks at it says well they follow the procedures they follow the statute this is on the edge of the curtilage it's a question is whether there's no way horribles but let me come out of from a different point of view of the government's also argued as we were discussing a couple of cases ago that these are really just third party business records there's no fourth amendment interest in them anyway  there's a voluntary transfer of the very information that's being sought you give a check to a third party and you know it's going to that person is going through the bank you know you carry your cell phone around know what do you agree that my whereabouts twenty four hours a day  going to be plotted nobody agrees to that nobody voluntarily gives that up in a bank sometimes i'm actually i'm not sure that's right because a lot of the time maybe this just happens to me you know but i look at my cell phone and this couple come up saying you know we want to use your current location is that ok with you you know or location services or turned off or what have right and when you say no it doesn't matter they still do this that women see that person who says no i don't then they would definitely want not giving anybody and they still are so that's just evidence of my point i think ultimately the question we think is the other thing about the deterrence angle which everybody talks about in the context of a good faith but sincere belief in that is not the only issue because when a police officer often than not our ability to constitutionally challenged them to courts decide is limited and it is unless the other problem with this is that of course you don't get a pre execution challenge with the warranty they're not shoot  parte so but there's way you're making a challenge after the fact through bit of there's a lot more that goes into i have a lot more confidence than a warrant than i do in this reality the other problem here is you because you think the state judges who issue warrants are more careful  chief judge of the district court because the chief judge doesn't have to do you don't have to have the requirements of a warrant don't exist here you don't have to file have the significant factual finding this report you have to have any of the things that are normally the safeguards you pride warrant that's why this whole carpenter case officer in what he knows who they are exceeding the searches these orders are filled out by law enforcement officers these orders are filled out my prosecutors and provided to judges so now we're going to have to create if we're going to do this we have to create a reasonable prosecutor standard and is the reasonable prosecutor standard going to be more exacting than the reasonable officer standard i think it should be and so then are we going to hold the prosecutor say hey this obviously if i'm using these warrantless attempts to get cells a date all the time this creates a real risk that i'm buying the fourth amendment if it's a reasonable prosecutor's standard maybe they can't pass that if they think about this too far and do we really want to be drawing those lines and i get an officer and now we get a process i don't think we do the op of the if there is the bottom line here is if this  may please the court my name is chris prince and i represent the united states judge turning to that to the good faith argument which we've just heard about i think what's important to the focus here on his defense counsel is saying you know when you look at these records  twenty four hour seven surveillance of an individual that's actually not true first of all so it's a record only give you information when the person is either making or receiving the call and that's the distinction one of the distinctions from jones where the tracker is actually given your g p s location all the time cell phone records all it isn't there the phone company's records are not created for the government are not created for law enforcement they're just records that show what power your cell phone is connecting to at a certain time and the about going back in time not g p s location historical cell site records all you can get from that is what power that phone was using when it either made a call or received a call pinging is different that's a separate standard that's not believe that the records sought are relevant and material to an ongoing criminal investigation right so reasonable grounds to believe which i guess mr friendly's point is a lower standard than probable cause it is a lower standard but what's important here especially with this case judge we have probable cause at the time we applied for the the phone records so the best case scenario was hey you used the wrong procedure they conceded in their motion to suppress the cells and evidence it says we have knowledge that the government had probable cause to believe that mr curtis or mr rogers committed all of these robberies and that they were using the cell phone numbers that for the record we obtained and like and you agree with mr brindley that they motion to suppress covered all of the s c a orders it really didn't last robbery the woodridge robbery in in december we didn't get those records until after the motion was filed until after actually just court than i the motion but that when it was even a big deal because the defendant was caught near the woodridge store so we felt it was even really an issue for the last robbery made clear that the good faith exception to this rule applies where law enforcement recently relies on an inactive statute unless the statute is clearly unconstitutional so that kind of addresses what would defense counsel saying about this parade of  some legislature went off the rails and passes some crazy statute that everyone agrees is clearly unconstitutional there's a now in crawl that's the out but that's not the case here at no court has ever found that the store communications act  is clearly it is so clearly unconstitutional in fact every court to address this issue has found that it doesn't have a property interest there is no fourth minute violation and the policy argument address that in crawl makes sense here because this is an officer can't be expected to question the judgment of the legislature that passed the law we are still following that the s c eight today i wanted a cell site order today i would go through the same procedures we used in this case i would go to the chief judge in this district and i would say this is how it's tied to a specific investigation this is why we believe that's relevant material and the judge will make that decision we what we don't get warts because that's not the rule and so to hold to exclude this evidence two years ago by saying hey law could vote for this purpose of what he's arguing it doesn't make sense when in his own motion to suppress the evidence he can see source probably cause at the time we obtain the records so best case scenario all the same as you should've used a different procedure and we will have carpenter in three months  when one assumes unless they kick it over and i don't know why they would correct but we believe whatever carbon whichever way it comes out doesn't matter because this case can be decided on good faith or it could also it's decided on harmless error and for that argument judge it's more than just this case wasn't a cell site case it was a telephone records case now there's no argument and it's important to realize there's no argument here that we shouldn't be able to obtain the toll records in this case without a search warrant everyone agrees told record just showing the calls back and forth you don't need a search warrant for that's the critical evidence here so what you had to take the cell side out of this case he's still convicted here doesn't matter because you have five independent cooperating witnesses who are caught committing these robberies who all identify the defendant mr curtis as the rough but i guess his big point is that the joliet robbery is the one where he's acquitted on and that's the one where you don't have the cell records correct but it's not we don't have the cell records we had no phone records for mr curtis for that robbery so mr curtis after the three defendants get arrested april eighth he drops his phone and then that juliet probably doesn't have it for six months so we never find a phone number for him so all we have for julian and this was the only robbery that this this  robbery to kind of build back up their credibility was the toll records and these rep these these robber never just talking to each other as these things are underway not just talking but before the robbery they actually were in in phone communication during the robbery so you would have the video showing the cooperated witness on the on the surveillance video holding the people at gunpoint on a cell phone well if you look at the toll records his that person is talking to mr to to mr kurtz at that time so that's just a toll workers forget cells it doesn't matter in my case and we had that for all the other robberies besides juliet you can show telephone contact which he's not challenging before the robbery during the robbery and after that rob so that builds back up the credibly they're making this up and just falsely implicating him of all the people that they could be talking two on the days that nobody disputes that they committed the robbery we're talking to the defendant before during and after so that evidence was there you also have the circumstances of his a rest at the end of this in the exact manner that the cooperated when this is all said these robber always happen lookout car out front phone contact and then the robbery car second in this case in the last robbery they finally catch the lookout car which mr curses and and he's arrested so if you look at that you don't need cell si was used it is the case that the defender was convicted in the one where they didn't have he was not now there was other telephone evidence that was available but the idea that they could prove beyond a reasonable doubt it was that and not impossible if what about the fact that the toll records are there they're on the phone with each other says well you know they're talking about you know that whether that was but that was part of it i mean part of mr curtis's testimony at the trial was an explanation of other people using his that particular phone in different times and so i thought that by itself i don't think would be enough so we can prove harmless is beyond reasonable doubt the corroboration of the cell site plus the phones plus the cooperating witnesses that's when they got convictions and i don't think we can get harmless beyond reasonable doubt now on the question of the what when when the information is transmitted it's not just when they're talking on the phone it's every e mail every  problem is kemp says well if it's a statute that really goes off the rails and just outrageous then you could still get review but the problem that everybody should have with that is a statute doesn't have to be off the rails crazy in order to violate somebodies constitutional rights and if good faith is applied in this instance you have situations where states are violating constitutional rights and there is no pragmatic or real way that a court is ever going to be able to get control in the legislature is going to be deciding the scope of our fourth amendment protections and what counsel said goes right to this point what police officer then with which to question the legislature don't question the legislature they must know what they're doing so than the legislators deciding and the good faith exception is shielding them from the kind of judicial review that we ought to in the to have so we asked you to reverse and remand thank you all right thank you very much thanks to