morning may please the court my name is michael rimando i represent the defendant michelle survey out in this case along with dennis riordan we're also here with george who represents the defendant brian rosenquist i'd like to reserve about five minutes of my excuse me don't you have a terrible threshold problem and there's a waiver issue yes i was going to get to that i'd like to start by saying first of all we submit that the claim was raised below and that this court has made it very clear distinction between claims that are raised below and arguments that are raised so the quaint claim that it's been consistent throughout this case is that the warrant was not sufficiently particular the argument was that it was not sufficiently particular because the attachments and affidavit were not served on mr a on ok the argument on appeal we agree is different the argument is that the the the warrant was not sufficiently particular because the attachments are overbroad on their face the claim use identical and you say claim it's because there's one word in the heading of your cla particular and therefore having put that word in the heading of your claim you can make total or you're going argument to the district card never argue this issue at all that is when they come up here you would hear that's really your paragraph outlining the requirements for particular already in the warrant also on the supplemental excerpts of record on page six that the memo even cites to center our calories versus hawaii which is precisely the argument that a warrant is not sufficiently particular because it wasn't properly served or wasn't served at all is actually a subset of the more general argument that it's not particular at all it's you and say ok that that's probably a dead duck and are you a totally different question here i think it's the same fundamental question which whether we're rather not the warrant that was executed metal question whether the warrants particular vers if it had been totally particular the most wonderful warrant anybody ever drew the argument this week or it would look exactly the same judge you should suppress this because it wasn't given to her and states is versus pl article on which is in our reply brief and that case raises the exact situation that you're talking about judge fernandez that was an illegal reentry case the issue was whether or not an underlying state misdemeanor conviction counted as a red as an aggravated felony and the district court the defendant argued first of all that the conviction was invalid altogether for due process violation and second of all a misdemeanor could not count as an aggravated felony those were the two arguments that were presented to the district court both of those arguments turned out to be losers because subsequently the ninth circuit had ruled ruled against them in another case the case comes up to appeal in ninth circuit and the defendant argued successfully that the underlying conviction was not an aggravated felony because under the categorical approach that i guess you were all discussing it in the case earlier this morning the point is in that case this court made absolutely clear that the claim was identical the claim is that the underlying conviction is not an aggravated felony now the reason why it's not an aggravated felony the arguments in support of it not being inaugurated felony have changed between the district court and the court of appeal i think we're in precisely the same situation again the claim is that the war not sufficiently particular below the argument was not sufficiently particular because the particular items to be seized were not presented to mr ray out on appeal were saying that even if they were served to mr ray off the document itself which was was officially it's the same claim up here i understand or you could say it's a fourth amendment violation and very generally i think in this case though that we should we should qualify for especially when and i should say this that that i agree with the government to the extent that review i think that that this court on the question of labor should be you know be conservative but sorry chief i just want to get to what was wrong with the warren ok i think we understand what you're arguing on whether we can consider it so if we just assume for a minute we can consider it what is your argument sure the argument here is that the warrant in this case allowed police to search and seize virtually every piece of paper and mystery as home in fact eyes to me because it authorized the search all documents relating to any bank account all correspondence from mr ray out relating to the sale of any goods all financial records all documents relating expenditures over five hundred dollars all tax returns all mail including utility bills and documents relating to any post office box this court has held repeatedly that especially when it's such a broad warrant and especially relevant so the particular problem here is that it didn't have a date that's her stock that's correct and we believe that that's fatal under united states versus caldwell this court to tell pretty clearly that when it's possible to include dates and here the government concedes that it was absolutely possible and in fact that they should have included the date whether it was when she started working at the bank which is in march of one nine hundred ninety eight or when the money began to be missing which i believe was in in march one thousand nine hundred nine through two thousand and one that there should have been the relevant dates and the documents prior to th executing officers to search all cash i think is overbroad for another reason i don't think that is probable cause to say that every every piece of u s currency and mysterious house is part of part of this no but if you don't count at all you don't example about bundles of twenty dollar bills now that i would you know absolutely submit there would be probable cause for now with regard to item two that is that is sufficiently particular this is again assuming that we can permeated i think it was read the affidavit right and so it was really meant to say something like well these people were making thirty eight thousand dollars a year or something small amount bank account so really everything you have probably is permeated by the fraud because that's how you're living you and your and your buddy that's how you  his came from the for all i did stand where you're going to turn in as the case law on this circuit at least with the permeated by fraud exception says that it can only apply when a more specific more particular description of the items to be seized is not available here the government concedes that at least under date they could have been more specific and called while this court has held that failure to put a date on a search warrant when it's possible is a fatal flaw and the permeated by fraud exception isn't doesn't apply when a more specific and and not just some of the items but the items that really called for seizure of almost every piece of paper off the letter utility bills think ation receipts bank bank documents i r s forms they're completely irrelevant to the case i'd like to re tallish should be suppressed because there was no probable cause for the warrant in the first place this court deemed that latter court claim waived although it was related in much the same way probably more so than the claims at issue here similarly in hawkins the defendant argued in the district court that the fruits of a traffic stop namely evidence of this intoxication should be suppressed on the ground that the officers lacked probable cause to stop the car on appeal this court deemed waived his related claim that the same evidence should be suppressed because after stopping the car the officers lacked the requisite suspicion to investigate his sobriety by conducting field sobriety tests and what we have is claims are aimed at different aspects of the same intrusion into a series of events and this court's decisions make clear that that is the level of generality we're dealing with even claims that are aimed at suppressing the same evidence and that rely on the same provision of the fourth amendment or subject to the waiver rule if they're as relevant here aimed at different aspects of the same fourth amendment event and we think those could claim i mean those decisions rather than the  cases that the defendant relies on are controlling here farrier raised the claim means that's the end of the story there's no mitigation as there would be it with trial errors under the rule fifty two b the plain error rule so what about the problem that i think we think sometimes we can consider wade claims under certain circumstances that is true this court has held that where there is good cause for the failure to appraise the claim this court can consider in the first instance on appeal i'm not sure that the defendants even actually express fully argue that they've a good cause here this isn't a situation where the elements the factual or legal elements of the claim are unavailable to them at the time they file their motion in fact all of the pieces of the warrant including the list of items items to be seized right stash the memorandum and in support of their motion to suppress and the district court and most of the cases and perhaps all of them or nearly nearly all of them on which they rely in support of their over breath and particularly claims were decided in advance of their motion to suppress and in search in fact so this isn't a case where they didn't have an opportunity to raise the claim they in their brief reply brief discussed there's a i guess a dispute between the parties about whether further factual development would be necessary and they claim in their view that no additional facts need to be developed here so this court should go ahead and decide to claim for the first in the first instance on appeal putting aside our disagreement on that sort of fact bound issue that alone is not enough i mean the rule twelve cases make clear that the defendant has to show a legitimate reason for not raising the claim before they don't have that here the kind of the pura legality of the claim does not excuse their failure to very large disproportionality between the dependent defendants known legitimate income twenty eight thousand dollars for one of the defendants forty thousand for the other i believe and there amount of spending deposits in the bank accounts of gambling activities that are all listed in the warrant there was no way in this case for the affiant in the warrant to further distinguish between good sell your honor that that is the one aspect in which the warrant could have been more narrowly drawn but in our view it is not fail why not it's not fatal first of all the question isn't whether you can point to one area in which you could be more narrow it's ultimately a question of reasonable ness we don't think this warrant is unreasonable on its face the card we're not aware of any decision by the way including cardwell which is held that the lack of a date restriction alone is fatal but even if this court were to conclude that a date restriction was appropriate for some of the items listed in the attachment be it would have been meaningful for at least a couple of them particularly number one number one list is the currency primarily and currency is i guess it is probably dated but there is no basis for separating currency found in the house on the basis of date  that evidence would not speak subject to seizure i mean to suppression excuse me even if the court found that the date restriction is appropriate for some of the other some of the other parts of the warrant beyond that we've got a fallback good faith argument here and certainly we've cited some i think very strong cases in our brief where a failure to provide appropriate date restrictions did not preclude a good faith reliance on a warrant that might have been overbroad in the first allowed recognize that the affidavit that's not incorporated in a warrant can't cure over breath but it can be relied on in good faith analysis if the agents at the time of the search relied on it and here we have testimony in the in the suppression hearing that one of the case agents in fact reviewed the affidavit which does contain effectively date limiting information it talks about the scope of suspected criminal activity one of the agents reviewed that affidavit twice before the search  beyond that we've got our partial suppression argument and again if the law here is a lack of date restriction then the remedy would be suppressing items from outside the date range and based on our  and we believe that those cases support our argument that really the remedy for the date problem would be suppressing things outside the date range it's not always in the case than well that there are cases where this court has recognized that total that kind of a search and in fact a partial suppression cases talk about the agent's conduct at the time of the search and unfortunately the record here is underdeveloped on that point our good faith argument about the conduct of the officers at the time of the search here focused on service and nothing else because that was the claim that it wasn't raised it wasn't and so to the extent the records incomplete it's our submission that we shouldn't be penalized for that at a minimum we should be allowed to make a showing on that issue if the court is not willing to decide on the current record so couple more points solve the brief unless you have any again particular questions regarding different rosenquist first on the waiver claim getting back to just candy's point about whether or not we could just say any fourth amendment violation then that counts as being raised raised below i think in this case it was actually a little bit more specific than that and that we said that the war was not reasonable or particular because if it wasn't served and like i said in the memorandum points authorities there is a citations to raised was whether or not this court can consider an argument that wasn't raised below i think that when it's purely an issue of law and when the documents are so are brought on their face and when i get time restriction was obviously available in conceded by the government that this court can't can reach the issue and in terms of the prejudice to the government for failing to be able to develop the facts further one of the facts that they wanted to develop further in their briefs they say