trial to connect mistress can be heir to the conspiracy but but just so we're clear there three times they get the phone arguably the first consent when he hands it to him and there's no evidence that just  finding that they got the the number then to you or are you zero in on the second one when they do it after the arrest and then there's the third time he wants once he disclaims ownership right so in the brief i briefed that the initial consent to give the phone will not get to the first agent here what i thought i would address was that the the second search by the agent after the arrest at the station house was beyond the scope of the consent given at the see my question is we don't there's nothing in the record to suggest they got his telephone number from the wrecked so why wouldn't they have gotten it by the in the what i think of as the third one when he's disclaimed ownership they would have gotten it from their cell i don't know how you say the word sell you bright celebrate c s l bright as he says oh this is my girlfriends then they do the cell bright swipe they would have necessarily gotten and then whether you call this harmless or the government characterizes it is inevitable discovery why wouldn't regardless of what happens in the second one they get it and be able to match it up with the records from the phone and he can see what i'm saying right i do and i guess i was going to dovetail ok you got your whatever you paste you're going to get to that point but i bet the it does tails with this on the on the the second search my argument as that was beyond but also that he did not abandon the  unlawful but it was then it later abandoned and the so bright test continued i know you disagree with that but if that's the way we analyze this why doesn't the final so bright search given the information they needed at trial and is the court's question that well the so broad search was conducted without warrant and the government's position is that mr s to me had abandoned the privacy interest in the phone but when he disclaimed ownership of it at the station however the this court in findlay has said that ownership of a cell phone is not necessary to have a privacy interest in the  family that the defendant was the cell phone was provided by his employer so he didn't own it but he used it it's another way what do you have to win the abandonment issue to  search or can you win even if the third search was proper but the second was improper and that i have to win on the abandonment issue really if the third search was proper that gave the government what it needed a trial to the identity of this the number well there are also several arguments that even getting him to the station you know that the scenes that i lose on all of the arguments  him being at the station but i would agree with that that for your it's critical that we look closely at family f n late and the government has sided pal from this court where of the privacy laws but that's consistent with family because in palau there is no evidence that the defendant who denied ownership of the phone had to use the phone she just said not my phone co defendants but in this case mr escott mayor said i was calling my girlfriend on this phone but i don't it's not they said pick up the stuff that yours and he doesn't pick up the phone you know i don't remember how it turned out that he did say that he did it wasn't hit but he did say it used he had used it to cause girlfriend or he had told the first agent colleen my girlfriend so law enforcement knew that he had called his girlfriend using that this piece of evidence i'm taking i guess it was harped on in closing in other words it connects your client to the only drugs it was that a piece because it it's they  take it in the words there were like the same fresheners air fresheners and there were some glove in one car matching the other glove could you get would there be armistice issue or you think the government zeroed in on this is the conclusive connection will that this seemed like all the calls for the event exactly and so the government did focus on it that they put into evidence the support results from their administrative subpoena that showed all the phone calls connecting the phones and then they also had a summary chart that showed you know the connections in the injury closing argument the the the prosecutor asked the jury well how do we know that he was connected to this conspiracy but if if my client is president it doesn't mean he knows what the other guy's doing even if he doesn't know it doesn't mean the overall flavor they're saying is is your client says take a look at it originally pretty straightforward consent and then at the end he says it's not my it's my girlfriend's and in that overarching picture of the continuum of they're using the phone isn't unreasonable it's not unreasonable fourth amendment inquiry he gave it to him at the beginning at the end he sort of does the same but you put your probably going to tell me we've got to segment each one and look at each one in my reading of the record was that i relying on some statement like that to justify a search i guess a second search he would rely on the statement from the border patrol agent who said he gave us consent so he didn't hear directly from from your client but he heard it from another agent who said he gave us concept based upon that he looked it up in the phone is that a good faith exception situation where her lying on the fact that it had been represented to him that your client had had given consent i don't believe so because but he didn't look through it until he was told by the other agent that you're right he said i didn't believe i needed one except because i thought he consented but it seems like the under the circumstances it was clear that it was a roadside that defense counsel probably could have tried to explain that away in closing out i think it my memory of it is correct that it seemed like it was it was a little bit equivocal on what the meaning of it was but i i was for i focused on not the actual records so i'm not it's not the detail i agree on but i think it was something kind of in passing i mean it yeah it was not a good piece of evidence but it it probably could have been it at least explained in a you know it dressed but the cell phone records  attack that i mean he does say i'll fess up to the marijuana but i'm not taking the heroin i mean i make a good baby just be ready yes and i defended just are willing to plead to get cases dismissed but he does go further and talk about the phone and why do we have the chip in the phone probably the district court wouldn't have gone through the difficult good faith question because the district court seems to have been under the absolute misapprehension that the phone was never returned is not  cleary on behalf of the united states i can start with a reasonable suspicion or just jump straight to the sun which seems to be of interest to this or maybe jump right to if this district court made such an obvious and clear error wouldn't have sort of infected the whole analysis of the fourth amendment the district court to stop said he gave consent they never give it back continues consent nowhere near so the lafave to search issue no where innocent good faith and the question i have for you is does the government agree that fact finding was clearly erroneous i agree that the fact that she i believe from time as it appears that agent garcia kept defendants phone after defendant handed it to him right yes that is incorrect based on the her testimony so everything we're doing now is trying to assess fourth amendment theories that the district court would never have reached really because the district court thinks it starts and stops with what looks like fairly straightforward consent at the road well yes and no i think it's important to go through the facts of what happened so according to the testimony the phone was handed over to agent garcia he looked through it he found the contacts it back mr ask me i had it in his possession he didn't use it there's no use of the phone he hasn't his possession until he's taken eventually later after the reasonable suspicion in the apprehension of the the f two fifty he's taken to a  station and when he is at the station they again they take all of his possessions as they would as they are processing any person who's coming in and with that they take the change they take the necklaces his id and the phone those are all part of inventory and they take the second search happens there so but no abandonment yet no abandonment does get the phone number at that point no abandonment yet no revocation of the consent to search the phone there's been nothing that has happened to the phone between that had been given back to later they said the consent was still good but that was the one search happened here it's back in the defendant's possession the consent on the roadside is complete in that consent was it was just handing the phone it wasn't a signed statement wasn't some general grand scope of consent what's the basis to say that when it's been returned to him that there is a consent for a second search the going back to the initial consent there's nothing that requires it to be in writing and details he always assume assume the first perfect consent but you still have to look at it at exactly the interactionist in the first one is valid but why does handing over the phone on a roadside stop but then getting it back why does that handing it over one hour before the second search on the exact timeline but why would that support then taking the phone again and searching it well i think it's reliance on the initial consent was proper for a few reasons one did the consent and initially was general in a revote they asked if they could look through the phone he handed it over they looked through it the second search occurred only four hours later it was in the scope of the same investigation granted it was by a different agent but it was still miss scope of the investigation revoked though if you get the phone back i guess that's where it seems different to me than these cases talking about i understand if the police still have it you show it's the obligation might be on the the individual say oh you know i want that three that mr scheme you know was in the presence of the agents as they were going through both columns so before he abandoned it during the second search he was there he didn't revoke he didn't say anything but they lost fully took it as inventory when their attitude so it's really a big onus on him to realize well ok they can take it from an inventory standpoint but when they actually look inside the i mean these are questions the supreme court had to grapple with recently that i still then could have said even though you can inventory the phone and keep i should tell you what but don't look inside that's but that's your argument should it is my argument and it's his burden to revoke the consent that he gave lawfully four hours before this is a continu this is still the same investigation are going help me if you could give me a case for either of these two propositions one approach a case that stands against the treatise language i'm sure you've read from the fa that a second search needs second consent so if you have a case that says continuous consent even when given back with agent saying i'm done if you have a case that you can and if you don't then i'd love you just tell us if you have a case on good faith and whether the government preserve that argument below is there a case that says if if second agent says hey did you get consent and they say yes that his search would then be permissible under leon you have a case for either of those propositions so i don't have a case for the first proposition but i believe if you go back to the brief we do a good job at distinguishing i rest of the faith and going through and using the fave's own words and actions and i was a good could you discuss family if we then move to the third search and say well is that one an abandonment which then led to them finding it harmless error so i going back to the good faith for just alternatively rely on good faith no because quite frankly i believe we have many other alternative arguments going through the even if the second search goes and probably have you you have to raise good faith in the district court to have this rule and where i was pressing opposing all certainly is it is did this gentleman disclaim it abandonment abandon it so much so that the government in evidently got the relevant data his phone number and then the second phones search got you all the records to make it all to absolutely one point about stanley i don't believe that's in the breeze i've looked and i don't recall and i just looked through the table content it was ok it could be and i can follow up with the court and there i just apologize i looked through briefly and i didn't see it and i'm not recollecti that i can certainly follow up on it advertized if it's very important but i would go back to powell which is a two thousand and thirteen case out of this court and in a de two people are stopped the defendant is a passenger and the officer standing next to the vehicle hears the phone ringing and the driver says it's not his it's between the the car door and his seat and the passenger says it's his  completely denying ownership interest anything like that and the court felt that the passenger had voluntarily abandon the phone by just claiming ownership of it and that she lacked standing to challenge anything and i think that's very similar to what we have here it and true two different arguments there's one there's abandonment but i think there's also inevitable discovery here the agent testified that had he claimed it he would have gotten a search warrant for it he didn't get a search warrant in the beginning because he was told that the that mr ask me a had given consent for the search so he searched it had at any point mr ask me a claim that at that point he would have gotten a search warrant to get the same data off of it that came from this  twelve there an officer was driving a vehicle to a station it wasn't it was the defendant and her phone ringing in there at one point he found the phone he opened it up he looked forward court found that there was an awful discovery later because everything would have been inventoried and they would have found it there  enough a man of the birth versus all this hypothetical inevitable discovery yes that yes it is a cleaner it is a cleaner argument but i think the point is that you can get to the ultimate destination and we would have obtained this information through a variety of ways the mention of the harmlessness this was very powerful evidence it was you know well over one hundred calls i believe in a short time frame the government emphasizing in closing argument it was also important enough evidence the the prosecutors decided to use it at trial knowing there was this big suppression issue and i think we've got four or five fourth amendment issues in this appeal seems like it's otherwise a clean case there's no other allegations of trial lawyer but the prosecutor but it was important enough to to push these fourth amendment issues doesn't that make it tough for you to show me your burden or harmlessness i don't think so your honor and i think that we used it at trial because we believe that everything that happened was proper of themselves one they weren't the only connection between the two but also in in view of everything else that we showed at trial it is harmless and what you have his recorded statement to his girlfriend what what else would you point us to what's the other best evidence ok so we have garcia recounting all of the details of the stop what they saw including the fact that s k mia and after fifty were driving in tandem we have jenny's testifying about how he fresheners we had better maris testifying that he had previously transported illegal drugs with both asking me and mr gomez using the f t fifty truck in the radio through the ranch roads to circumvent the checkpoints mr also testified that after asking me as arrest he admitted that he had been caught helping transport the marijuana and heroin in part because the agents found his glove in the load vehicle the car dealer who sold the f one fifty testified that gomez had trust test driven the f one fifty just before it was purchased by cam to the f one fifty that mr ischemia was driving was registered to camp two and then we have the recorded phone call between mr ischemia and his girlfriend so there was a number of things that were linking them yes the phones were the phone the phone records were part of that but they weren't the only thing and they were they weren't dominant enough that this is not harmless or the recorded phone call wasn't from this from you didn't have the number just you know unless there are any further questions i rest all my  briefs the court was asking about the family case i didn't it's cited in the groove i didn't go through a lot of analysis of it if i relied on a case from the ninth circuit it does cite in the brief i'm citing to family and but that the ninth circuit case is actually much more on point but it relies on finley's reasoning to say that if some just because someone says it's not my found if they if they have a if they've used it then they have a privacy continuing privacy interest in the phone in findlay is very similar except that the defendant that case didn't didn't say that's not my found it isn't well it's i use the found the the government's point was that he didn't have privacy interest in it because it was provided by  it is united states versus lopez preuss at seven three zero f thirty eight zero three two thousand and thirteen case in it cites the family case which was two thousand and seven then lay was overruled on other grounds based on a search incident to arrest issue that was raised later in the supreme court not  itself but but otherwise the reasoning of friendly in the privacy interests not in your brief you are making an argument that the search of this tainted the search of the art the phone that was found associate the other pick up truck i didn't make the i know nothing about him because the sent the sim card no that wasn't now i think because basically was a search my client didn't have a privacy interest and the othe that showed all the phone numbers it called that wouldn't have connected mr escott mia to a conspiracy because they wouldn't have known the phone number connected with the phone they found on the street as committed so they just would have had a ok that's fine but it is like a fourth amendment multiple exams thank you ok thank you thank you thank you