good morning your owners marilyn that they have to titian or mr robert louis told their it's our position that the detective in this case intentionally intruded into an attorney client privilege communication and it was the use of that communication that implicated the six anemones exclusion principle had the district attorney not used the communication not admitted in evidence not argued it we wouldn't be here there wouldn't be a complaint they supreme court establishing weatherby versus bursty that when confidential confidential communications are overheard the constitutionality of the connection depends on the use of it whether it's direct or indirect the focus their force on the use not the subjective intent of the officer and whether heard there was a problem because the government didn't use the conversations that involved undercover start from the proposition that the trial court dealing with the statutory provision under california law concluded there had been a waiver by the facts that you understand in this case right on appeal what happens on appeal that appellate court of federal law as determined by the united states supreme court here we have an underlying determination involves state law waiver of the privilege well the it's our position that there's no deference to the state court finding of facts when it's an unreasonable application based on the facts in the case in other words and let me just take one step back i believe that both provisions of twenty to fifty four  inherent decision that read into the decision to the space requirement there is no requirement no other words if the detectives intrusion was purposeful and it's been briefed in our brief of w jacket is not and this came in the context of a witness just having testified that they had obtained jackets from mr tall bear that asked him what he was wearing that night they had told him that the man had been shot and that the been lit on fire it was clear that they were looking for clothing and they had told him they were going to test it so in the context of that witness the statement was highly incriminatory and it was obvious o standard is purposeful not sarap tisha and there's a big difference between some kind of underhanded intent and a purposeful action and the one of the problems with the report recommendation that was adopted by the district court and is now the subject of our film is that it's clear that his share of tissues element so to speak is has been added to the standard  the evidence in the record was clear that it was notes between the client and the attorney and they were talking about how to handle a legal matter involving i don't remember if it was money laundering or some sort of importation but it in that case  officers conduct was open it was a customs officer right at the border there was no service quality about it and in our case when the detective stood up and looked over and the it's our point of view that it's the intent of the client that really matters not the intent of the officer and so the state courts seem to really focus in its factual findings on that the officer wasn't doing anything improper he just enough he read it that's his job is in the courtroom in other words he continued detecting our point of view is that it's the client's privilege it was the client's right to hold it a way that the client did at least minimal precautions and it's our position that what he did was reasonable the standard is did he actually flies reasonable precautions to keep the nature private and that's facts there are very clear this was a client who was don't recall it was really petitions i think if he did but you know i just but i you know i just don't quite get here here i'm sorry there was no alternative for him because of the nature of the courtroom because it was so tiny and the two tables were placed  course and objected immediately that it was a privilege communication and that in no way should it be used in that he had instructed his client was with right that which crime was immediately immediately upon in the first trial the detective discovered the the note and it was preserved at that time was right out in the open yeah well that's mine on the table and you know i think that's an unfair characterization in the sense that the client had to stay in that s have seen in the newspaper for can attempt to conceal it was a communication made in the presence of third parties and it was an inadvertent act on joseph's part so we have to start from the proposition that these are the facts of the situation unless you can demonstrate august i don't think it i think an expectation was that it wouldn't be discovered and i think the lawyers the expectation would be that it wouldn't be used but the client seems to have followed the instructions exactly and it had been working i mean he had never during the course of the day nothing had ever been discovered at the end of the day he gave his pad to his lawyer it wasn't as  public place where people passed by or in a place that was not exactly where he had to remain in the pad was exactly where it was all the time in the trial because right over you could  covered it i mean there are other things that could have been done but in light of and i think that had it been the end of the day when he left or people that he was out of the custody of his past  a better argument could be made that he should have had to have done something more but at the end of the day he gave his pad to his lawyer and this day wasn't over the lawyer was still in the courtroom and  but rather focused on investigator joseph and that's not the case if you read the trial court's remarks and decision it's specifically focused on tolbert himself and said in his opinion would be seen and that he inferred told told its conduct or lack of any attempt to either turn over the to the page or or hide it or move it or or anything else  indicated that there was there wasn't any when he was finding tolbert waive the attorney client privilege he was saying i think that tolbert didn't particularly care if anybody saw or you said use the word mat who would have expected that at some point in the day the investigator would stand up he wouldn't things going to well i didn't know there was going to be another trial