the morning honors may please the court angela dallas for the defendant and appellant brian right i would like to reserve two minutes for a bottle your honor the crux of the case is the government utilizing modern technology and then having that technology essentially create the violations against mr right and i want to start with the tracking of the cell phone and carpenter unless there was a different create the violations or discover the violations discovery is probably a better way of describing it your honor angel i think he would agree with that but certainly that's what created the discovered the violations in this case and it's a predicate to this whole argument whether or not this exclusionary rule applies in the revocation context yes your honor but it seems to me that that's a predicate rule we ought to discuss before we then look to whether there may or may not be a violation yes your honor so i'm arguing and this is a limited case where th applies where it is and he agree just violation of the fourth amendment in this case your honor and i can speak to that specifically that's the short answer and so that would be applying for the first time really what we've applied in the immigration context and importing that into revocation or do we have a case on revocation where we've also seen the application of the green just situation doctrine yes  with that case the analysis in that case is really important first mr wright did not consent to having his cellphone searched and even if there was some sort of waiver not a flexible in this case the search itself was on reasonable supervisor really see certainly the private his privacy interests is lesser because of his status but it doesn't go away all together we know that from riley there's a limited expectation but that should not be substitute for no expectation but without any specific activity second the clarity of the conditions or probation we don't have any clear and ambiguous terms to point to like laura their words were container or property not equaling a cell phone and the data contain within that cell phone specifically here the provision is a warrantless search of a person property residence place of business and vehicle specific somewhat limiting terms that do not include a cell phone and we also have a search conducted by an f b i agent and now a probation officer so not matching the language of that search term and the really the nature of the contents of a cell phone it is large it's a mini computer there is all sorts of data on a cell phone and just want to speak to the good faith exception in this yes so if the appellate precedent in this case really was at best unclear as of early two thousand seventeen you have for example the nots case from one thousand nine hundred three about the beeper being a specific journey taking it forward to cuba the thermal imaging case the use of technology even in two thousand and twelve but we don't have anything a carpenter has decided eighteen months later is that correct correct so i mean it's hard you can add a few cases but in terms of the good faith exception it seems hard who impose that when the whole issue of the cell phone search and the scope of the surge really didn't have clarity or some clarity until carpenter so how do you overcome the temporal situation yesterday so we're looking as of early two thousand and seventeen or late two thousand sixteen what was the state of the law certainly a large i was in fact and we have jones the g p s tracking case coupled with the riley case a search of a cell phone incident to a wrestler taking all those things it should  give an indication that this needed a warrant taking those cases together even apart from carpenter being decided at the time i wanted to move on to a different area unless there was more questions so the due process concerns and this rights being involved in prostitution having a fair warning of what his activities what he was not allowed to do what he was allowed to do for example the having his phone number associated with internet ads there because he was basically acting as a pimp yes and i so they were right in your speaking to the standard in this in this hearing right the preponderance of the evidence circumstantial evidence put together to as a judge found the results are in it certainly i'd like to shift the time period to how this information was obtained i mean the results based approach is difficult for my clients and we're also talking about a lack of notice in association with his girlfriend really the key word i'm looking at with that is the word engaged where the she was engaged so what does engaged mean is it past tense is it because she was arrested it's not the word engaging talking about current behavior it's an ambiguous term and it sounds very technical but it's important when you're trying to figure out what mr right can and cannot do they are reporting chains of residence quickly that again we have we have a standard to figure out what residence means is it how many days how many paying for the location of his reported residence versus not is it some other standard where his toothbrush or clothing is just not clear standard by which the probation officer can figure out for standby counsel you have a right to counsel you have a right to represent yourself whereas the right to represent yourself and have counsel you want it is it is the discretion of the court i met and agree to that it just became a concern when he during the hearing was having difficulty with certain things so that he would have been assisted with the use of he had like that that could be thank you we've got i mean we see it unfortunately we see lawyers who are well qualified and have difficulty with things so that doesn't give them a right to additional stand by r so there was a motion filed testimony and a hearing and he was presumed to have a right to richard return to the property and it should have been returned the case was over he had pled guilty and the case had been resolved in his favor i see i have around two minutes from anybody that you may reserve that i think you the court peter levitt for the united states the government's use of modern technology is perfectly legitimate in this case and largely irrelevant to the ultimate disposition  after consulting with probation officer mommy obtain the trap and trace information and this went to one of the many supervised release violations and a comparatively minor one that the residency requirement the plane shifts of the district courts imposition of a twenty one month sentence as set forth in excerpts of record forty three to forty six is the new crimes violation the pandering and the living off the income of a prostitute and as a violation of the association condition the associating with known criminals when he went down to jail and on a monitored call spoke to her and basically this is a pimp talking to his prostitute apologizing for not screening out the clients better so the technology at issue the trap and trace went to was he's staying at his listed smoke ranch address or turned out to be the case was he shacked up with one of his prostitutes at the west rb address that's the only thing the trap and trace and the location information went to and it's largely duplicative of what officer mummy found on his own the old fashioned way just driving out repeatedly to the smoke ranch address and never finding the defendant there so i believe that issue falls by the wayside with regard to carpenter smith and miller carve out a third party exception that's been applied by all circuit courts in the wake of carpenter which was decided in june of two thousand and eighteen and this is in other words information where pursuant to twenty seven zero three party the information was obtained from a third party the carrier and the courts have applied smith and miller the third party exception and a good faith exception in cases just like this so if there is any infirmity as to the residency violation i would argue that that is harmless and i'd right on the a den dumb supervised release violations the second set of new crime violations eighteen u s c one eleven convicted on all three counts including the aggravated variety  use of a car a deadly weapon to assault resist impede evade so he was convicted on all three counts in august fifteenth two thousand and eighteen and his sentencing is set for november nineteenth two thousand and eighteen year honors opinion in lara is plainly not relevant to this case that was a this examined state probation a typical warrant that i consent to the warrantless search having been convicted and in that case unlike this case the probation officer came over pursuant to that clause everything's fine so far and grabbed the probation or cell phone with absolutely no suspicion probable cause nothing grabbed his cell phone opened it and started looking through it and found the neither vague nor overbroad they don't prohibit him from using the internet or exercising his constitutional right to place advertisements prohibits him from placing advertisements to solicit prostitutes in violation of nevada state law the supervised release condition that says you can the association condition says you can't contact known criminals when lyme in his prostitute had been arrested and he went down and contacted her a reasonable person would understand that he couldn't do that even if at that point in she'd been convicted of anything i don't believe she had been  criminal if she's never been convicted of anything but well setting to one side that the record evidence show that he was using her as his prostitute i believe knowing that whether or not she's been formally convicted the that fact knowing that he's using her as his prostitute and she's sitting there behind bars the district court said at the very least the defendant is who in your view the condition applies to associating with people who have never been convicted of anything but the defendant knows or the probationer knows that the person that they're associating with his and gaging in criminal activity yes your honor and at the very least as the district court observe in imposing sentence he should have gone to the probation officer and said can i contact her so that the finish that he wants to chivalrously bail her out of jail but that has to take a backseat to the article three judges imposition of a supervised release condition he can't contact would you turn to the to the return of property question yes your honor when when the search warrant which was validly authorized and executed when it was executed they found about forty thousand the what's the burden when once you get to this point who's got the burden of showing what well this is this is after this is after the proceedings because he was actually arrested on on a on a jewelry robbery which for some reason fell apart defendant's rule forty one g motion should be presumptively should presumptively be granted if the government no longer needs the property for evidence you took it from him the presumption is it's his property and he gets it back at the end of the proceedings now if you've got arguments as to why it's contraband or as to why it's forfeiture then the government bears the burden of showing that i didn't see that in the magistrates i saw this set out in the magistrate's framework i didn't see that that in the r and r i didn't see that that's how the magistrate actually applied the magistrate said he failed to satisfy his burden of showing that he obtained it legitimately i don't know where that burden comes from i believe the magistrate and this may be m i was looking at this in the proper context of this is an equitable return of property is at bottom an equitable consideration and here we have a guy who was indicted for the robbery to the government in the footnote he need only needs to demonstrate ownership before the burden shifts to the government now if you've taken it from him that that is presumptive ownership and that's what we said in gladding so the b shifts to you you get to show that he didn't they didn't acquire it legitimately but what the magistrate concluded was that right failed to demonstrate the money is rightfully his where did he acquire a burden to show that the money is rightfully his i believe the did i don't know the direct answer to your honor's question i would note that the magistrate in looking at this heard the defendant's oh completely implausible testimony about going to the am and winning two thousand or three thousand dollars a pop but it didn't add up to twenty three thousand dollars even if you gave him the maximum money that he said he wanted the dice table it didn't add up got that that might go to the government's burden but it looks to me like the like the magistrate put the burden on him to show that the money was rightfully his and i can't find anything in any of our cases that suggests that an owner has to prove that it is that he is the rightful owner of something to which there is has been any contest of ownership i would therefore note your honor that as i pointed out in the answering brief i don't believe this issues properly before this court in the first instance why is that because he filed a notice of appeal and it was rejected and he never consolidated the motion to return property issue with the supervised release issues though the government's answer is it's not properly before us that right and  alternative the answer i previously been giving that your honor has countered with with with facts and and quotes from the record i'll stipulate to that well that's good because that's what the record says so thank you thank you we have your argument and just want to speak to plainer briefly and without playing there really this cell phone tracking does not get before this court the search itself cell phone tracking is not a condition and that's exactly the issue we have an additional condition without notice i'm not aware of any standard that calls for that your honor and certainly he had good because he was moving to a different location there was a mail that was returned this is the earliest he was able to file that notice of appeal according to him and he wrote as to that and you know there