morning morning may please the court entered gets for the united states with the court's permission i'd like to reserve three minutes for a bottle i'll take the two issues here in the order they're presented in or briefs on the first issue when a magistrate judge has authorized the search warrant the supreme court has long instructed courts over fifty years that the warrant should be interpreted with common sense in context and not with the hyper technical rules of construction that are typically reserved for statutes or pleadings the district court did not do that here in striking down the search warrants for defendant shaka castro cell phones under the fourth amendment particularly clause that order should therefore be reversed and all the crux of the district court's opinion here rests on the fallacy that in the bulk of the warrant the phrase a crime can only be interpreted as referring to any crime that simply is not the best interpretation the warrant itself in the same sentence preceded by herb followed by a colon list violations of armed robbery aggravated robbery under the texas statute think the district was grammatically correct and to context here is very important because we are dealing with police officers dealing with the midst in haste of an investigation i mean a crime is actually better than the crime or this crime which the district cour suggested because those are singular terms a crime could refer to the plural we had the plural here violations of aggravated robbery and i think you're right that that's not the only interpretation here but it is the best one and it's also the one that courts have typically drawn in these circumstances including in the cases that we've cited in our brief what do you do with a crime you said context and i agree with you the context in that area is pretty good and pretty helpful to you but then you have that  clause which takes you back to a very broad reading of a crime i don't think the catch all clause there can be construed as modifying a crime i mean what makes them not saying no it's not the same so i don't mean that but i mean you said  contextually you say what do you mean by a crime when you get to the end of it you can say whoa i guess they mean any crime i don't think that's the fairest reading of that provision your honor and i think that the reason is because that appears in the end of sort of a stand alone catch all clause it's often the case in these circumstances where we have that type of catch all clause and courts have held that several ball i mean our crime here as the officer testified and as his action showed it was intended to refer to the violations of aggravated robbery and his testimony was unequivocal on that point his actions were equally unequivocal he testified that that catchall clause that your honor mentioned he only intended to refer to as a  criminal section at the very beginning of this sentence that we're talking about did it dude have that same reference before the records later to a crime i'm sorry i'm not following ok so i'm hampered because i can't find the warrants in the pile of paper in front of me at the moment one of these warrants it's not a caster one it's the other one says right it says it identifies the specific crime for which they're seeking evidence in the first sentence or somewhere up top and then it's about that's followed by a colon correct does the castro warrant have the exact same language as referring back to it acumen we're dealing with late police officers we don't parse this like a one l contracts exam we don't parse this like a statute we review it with common sense in context that's how the officer looked at it that's how the approving  magistrate looked at it that's how the officer looked at it again when he searched that point was unequivocal he only searched for in found robbery evidence it's also how defense counsel looked at the district court raise this issue sue a spontaneous defense counsel looked at this war and said oh yeah that's mine was only after the after the district court raise this issue the defense counsel litigated it so that's all pretty strong circumstantial evidence here that the people who looked at this language interpreted it as referring back and the only one that got it wrong article three judge yes that is argument i think the context supports that and even if the district court's reading was plausible even if it's the better reading the good faith doctrine would still appl here and the good faith doctrine would still apply here one because the officer's actions during the search confirmed that he was behaving reasonably he was only looking for robbery evidence and that deterrence would really have no place to brings me to the supreme court's decision in hudson because the evidence that would be suppressed here is causally didn't that disconnected from the violation hutson involved the violation of the not going announce rule equally true here the evidence that was seized the only evidence that was seized was in arguably included in the proper scope of the search warrant here now we're not saying that that would never result in suppression i think gro is an example of when it would when it's so facially deficient that no officer could rely on it but even if we're we're getting back and forth on whether to parse a crime as referring to any crime or the violations immediately preceding it that's not the type of such a type of thing that  of the supreme court using grow a simple glance at the warrant would have revealed to the contrary this gets back to one of the cases we cited in our brief where the court explained under the good faith standard if you handed this warrant to someone if you handed this point to someone on the street they'd know what it referred to they'd be able to figure out what it authorized to search for and yes it includes some language that can be interpreted one way but they would know what it refers to if that holding officer to it's higher standard than the man on the street right that's the test for good faith that this court at least i mean it was more of a colloquial aside in that case but it's one of the reasons why this court found good faith and i'm i'm blanking on the name of the case it was if you handed this to somebody they know what it authorized the search for we're not arguing arguing that that's the particularities test just catholics were arguing that that supports our good faith are getting here for choice and there's never been any allegation in this case at any time that that's correct as larson that that's where the suburb of severability doctrine exists in the first place the so you don't punish the officer by excluding inarguably proper evidence based on one clause at the end if they didn't recover any other dents from it this would be a much tougher case if you then relied on that clause and search for child pornography or tax or fraud expenses we don't have that here but if you read about severability and that's what we did there's nothing to discuss because everyone agrees none of the evidence that was seized was pursuant to that last cla correct that and everybody agrees that no evidence was seized pursuant to that last clause i think they quibble with the crime controversy still so i don't know if there's nothing to discuss but assuming the court either agrees with us or agrees that it's not bad faith to interpret a crime as referring back to those aggravated robber you're correct or something there's nothing left to discuss with my remaining time to the second issue the district court just missed or simply misread the law in holding that the search warrant for defendant wanna lay a cell phone did not permit the subsequent review of that phones information via forensic search the word here authorized a search of that phone for robbery evidence this phone was you know in evidence storage some facility was it in a place where it couldn't be tampered with physically or for that matter electronically i believe the answer is yes and i believe it's in the record i don't have the specific insight for you judge sutton but i believe that answer is yes it's a little different about a cell phone from you know a physical object you know a guy used in a crime you could remotely change the evidence so that's why i'm just one it's a long time it's sitting there it's not that long compared to other cases but it's nine months and so if it if there was some way to do that that would be a problem i'm not sure it would change the scope of the search warrant but it does distinguish a phone from say a house or something you give back to someone or back out in the world where you don't maybe have the same problem cause or they have a renewed possessory interest in it you know every court of appeals case that i'm aware of in these circumstances and especially the nice circus case in johnston has held that continued review of the information even multiple step forensic reviews even spread over i think five years in johnston are permitted under the scope of one search warrant that search warrant authorizes the review of the information on the phone the federal rules are written the same way the texas rule eighteen zero seven see as written the sacraments you know a lot of these i mean i know there's joint investigation and others do sovereignty and all that stuff but i haven't seen a lot of at this doctrine of we determine whether it satisfies the fourth amendment would turn in part and whether you complied with all the texas procedures and i'm right that that's how it works in other words it becomes an unreasonable federal search and seizure if they're able to show that you violated this texas procedure even if it's a didn't violate could then hand the evidence to you because it complied with rule forty one and get out from under the problem that the state courts would suppress it i don't think it's because a i think the answer is yes but not because it complies with rule forty one is because the can was with the fourth amendment the fourth amendment deals with the review of the information on the phone and whether it's within the terms of the warrant virginia be more deals with a similar issue where the supreme court said that the compliance with the state will a procedure doesn't result in exclusion in federal court and so you even if the texas rules didn't exist the fourth amendment would approve permitted what happened here what makes our case even stronger is the texas will themselves permitted what happened here and indeed if the district courts reasoning were adopted and in these circumstances it would it would result in i'm so i think maybe what judge sutton was asking is if it were all forty one or more restrictive than the texas school or maybe was an f king this but i'm interested if forty one were more restrictive than the texas rule in the federal officer complied with the state warrant and then tried to introduce the evidence in federal court complying with the constitution but not complying with the world forty one wouldn't federal officers always want to piggyback on lenient the rules that are consistent with the constitution but more lenient than our federal rules but i don't think so your honor i mean route forty one doesn't say row forty one just governs the not what the officers are doing but what i'm sorry my red light is i mean  u know it's a good question rule forty one governs what goes into a federal warrant when agents get a federal warrant right it doesn't sort of constrict them their conduct when they're executing a state warrant in conjunction with state officials officer and the federal rules are more restrictive in terms of what i need to get get a federal warrant if i wanted to get my own warrant if i could go to some faith with lax will that nonetheless comport with the constitution i would do that all the time and you would under rule forty one have said that if it's a a federal investigation or predominantly federal investigation then typically require the federal agents to go through the rule forty one process and comply with rule forty one that would be a lot different case if they were abusing it i mean here the court doesn't have to reach that because the officers federal agents were even involved the investigation when it happened this was just a state investigation that when they realized that the scope of it it became a joint federal and state investigation so yes that would be a much tougher question and it might require a federal warrant but it does not here ok thank you thank you for the rebuttal here from the other side because we have two lawyers here two defendants chaka castro morning morning an interesting position for a colonel defense lawyer to be on the other side of the table in this case this is this was a case that was superseded twice and we were given timelines with and wouldn't file motions and the judge had to back up against the wall because she had quite said we're g o for well over a year and a half and wanted to resolve the issue before trial this got decided on the eve of trial of course we thought it was correctly done we we challenged the search warrant on the theory that it was overbroad and we're piggybacking on some of the cases that we're talking about the idea of too broad a spectrum with a cell phone what is it that is contained on a cell phone your life my life photographs our searches or queries all of that is on the phone and there's really no restriction once a warrant is issued unless a protocol is employed the judge ordered an evidentiary hearing and at the evidentiary hearing we got into some conversations with the investigator from texas this was originally a texas investigation i got handed over to the feds and a few months later  what was his thinking about the language that was in the war and we talked about the word versus the what is more inclusive of the word that he agreed hollyer however the investigator from tax had exchanged particular seem to be in the abstract what do these things mean in the context of this affidavit she did it was abstract but the question really went to the objectivity of the search warrant and what would have been allowed what was contemplated by him at the time that he was using this form book to put together a search warrant and if the word always used or they always use he agreed that it was going to be more inclusive with and that point i mean form book or whatever were problematic and i think that when it comes to everything else in this neither one works perfectly  supposed to refer back to the aggravated robbery charge and i agree but if you look at it in the context of the entire warrant and affidavit the language is the same judge catholic the the and it says and any other crimes start to talk about the brought or the over breath of what it is it's implied when you can look into a search not only for the specified crime aggravated robbery but also to look for any other crimes or any evidence of any other crimes that to me was overbroad and that was what i thought was the death knell for this warrant and i thought that the judge acted reasonably but i mean the government i think agrees that it was over broad but also says you can sever that and that no part of the search was done pursuant to that part of the warrant i mean that's what they're saying anyway there were two things in their argument that i want to take exception with and i really don't think i fleshed it out enough in my in my brief and the first part was the fact that they had indicated that there was the only thing that they look for was evidence of the aggravated robbery chuckie castro is charged with many different robberies but there's conspiracy there's racketeering there is any number of charges that are not included within the parameter if i was going to look at block work or what the parameter of aggravated robbery would be that they could have looked for and they could have justified and do all right and then there's the other aspect and that is that there's more in there that they could have found for example of the investigator indicated he could find pornography and he agreed that if he did that that would be a chargeable offense here oh no but the point is that i'm challenging the overbroad of the war itself now any reasonable officer who is putting together a search warrant affidavit should not be using a form book number one number two issue number one they should particularize it to the very offense in which they are presented it should have some some some guidelines some parameters and it should be relevant that that didn't happen here and the other aspect of it is is that we find that the this is a form book in texas that they're using it throughout the state of texas so i think that  judge in reasoning about the severability argument that this is something that needs to be addressed and it has to be addressed in a way in which it is more than just giving it a superficial gloss and say ok well you know what that was wrong but it was harmless er you know you've got to send a message that that should not be the way that search warrants are put together that's not the way that affidavits are supposed to be presented and reviewed now you're talking about article three judge it was mentioned but she was also who had signed up the war in this case but i think that the sanction was appropriate the harm to the government they admitted ninety nine to one hundred percent of their cases going to get approved by other ways but the measures had to be sent in terms of the way that this was presented the way that it was it was it was done willing no there wasn't any emergent situation this was i think it was seven days later there wasn't any real hurry or there not surprisingly my position of a little different than the government with respect to this warrant and this issue oh i contend that the district court was correct in holding that the f b i could not have reasonably relied upon the texas search the proposition that a scope of a search is limited by the terms of its authorization and i think it's still good law that when a police officer gets a search warrant what you can search depends on what that search warrant says he can search and in this case if you look at the search warrant here and then see that several months later an f b i agent says i'm relying on the same search warrant i would suggest it's unreasonable as in the texas rule itself have an exception that would allow later forensic search the texas rule first of all we're not relying on the procedural questions which i think the government is saying we do we're relying on the fourth amendment the texas role as i understand it the texas rule says it is executed when it's when the cell phone and see that you are arguing now about a search outside the limits of the warrant itself so the warrant exactly not necessarily what the rules you're not referring to time at this point judge can have the just ask a question because the texas what happened in texas was they got this search warrant the search warrant which was for aggravated robbery the search warrant would set forth the facts of three days in december of two thousand and fourteen of of a series of law it was executed automatically because they already had the what they already had the cell phone at this point they seized the cell phone at the time of arrest incident the arrest the the point is though that they'd went forward the next day and and search that's the cell phone now i attacked that in the district court and argued that that was illegal but we lost that and that's not before the court now the search that was conducted in texas which resulted in quite a bit of evidence was not surprise they still government still has full use of all of that evidence what i did say was that the search having been completed and the return having been filed and the case the search warrant down there being done for them to come up here nine months later taking a search warrant which is addressed to just to the peace officers several months later by f b i in michigan that i mean this is fourth amendment absolutely fourth amendment yes and i did not see a response to the government's good faith argument in your brief well and when i saw that i said i should have  address it more directly but i was simply rely on what the what the district court judge said with respect to that which was that no reasonable officer could have relied on that warrant that's that's it in a nutshell i mean you have a lay person who's in the midst who actually stops i forget if it was your klein or the other one he actually stops what was going to be a search at the time and says i need to go get a warrant if i recall correctly must be the other because ok my ex but it's been a while since i read the briefs i shouldn't read the briefs till the night before but anyway so you have a lay person who goes and does this and references a specific obvious to this lay person he's got a lot of other things going on that when he said i wrote there a crime that by its terms would authorize him to find evidence of any crime not just the specific crime he had mentioned in the same sentence i thought some of the more like mr thomas's issues i have not i've not raised that issue my issue is simply that they are trying to use a warrant that was issued back in texas which was about regarding eyes of divided up the issues here is that it well you know my client might there were two different suppression orders but would i best argument for nine months later i mean give us the best case that says you can't wait nine months is the best the best case is the warrant was the search that was conducted nine months later was not conducted by the people who were authorized by the wa nt so your argument is that the federal government federal agent never rely on us why they can't pay you back i don't think no no certainly they could they could ok but cooperate with the state the state has a war in the federal government is involved certainly good but that's not what happened here they turned the investigation over the federal secondly that the warrant was pacifically meant to be involved with with three or three days worth of robberies or more than three in texas and by the time the third world people did their search we were talking about several years worth of activity all involving several states michigan being one of them georg cetera and looking for record tearing and now obviously was connected to the robbery but it was way more expansive than what was authorized by this warrant which had been issued way back when and had been executed way back when and had been returned way back when and this is the argument that the government is making before you now was was kind of a an afterthought in the court in the district court i thought they raised it so i'm not arguing that they didn't raise it  understand that but but this idea that the that the the f b i agents were able to and in other words if if the government gets a search warrant for anything of a cell phone a computer and so on the smallest piece of evidence later on some other government agency then go back into that thing and say well we're just going to again we're going to rely on that original search warrant and completely search that whole computer forensic exam look at every corner and inch of that search warrant that computer or cell phone or whatever and say it's a good search because we had a search warrant way back then and i think in a nutshell that's her position  forget so you know the one thing that i and then this last argument in the last defended it is funny i mean it's not just that it goes from aggravated robbery to rico it's it's conspiracy it's crimes in other states so i don't know i mean that that gives me a little pause it should your honor and i'll explain why first when you're searching for evidence of a crime here because texas aggravated robberies you're not just limited to evidence of those robberies but evidence re related to it that's the standard this court you know and so evidence reasonably related to it would include evidence of a common plan or scheme or evidence of other robberies using the same amal and but that evidence would be admissible in texas to prove those robberies it has to be reasonably related conspiracy statute but evidence of conspiracy would be reasonably related to evidence of an armed robbery spree and you had messages saying you know let's remember we need to meet at this house to rob later tonight that would be evidence of fact they rob the house that's correct your honor and maybe we're the ones who i mean who were they were the ones who did the robbery that that's correct judge pathogen and notice that this this it comes up in similar circumstances if you have probable cause to search for one hundred images of child pornography you aren't just limited to those images you can search for the other ten thousand that you find on there i mean that's reasonably related to that the crime list in the warrant to search for evidence whether this court treats it under the severability doctrine or good faith the result here is the same for several billion purposes this clause mirrors clauses in say rhetoric where the language is actually far broader and the court had to sever far more  first or not the second one there are two or is there or any other files the leader not involved in this or any other unlawful activities we're not actually relying on that for any evidence here the evidence we see is this all in that light i got it yeah i see ok i'm topic device so the last there's a semicolon of the ultimate semicolon communication facilities directly relating to or operating in any in conjunction with such device period the supreme court has held the form book is not evidence of that faith that's what's in it page five ninety nine and so i would just direct the court to that if there are no other questions thank so i guess that there were two or three of you for your help or briefs and arguments thanks so much we appreciate it the case will be submitted