good morning this is dan paulson i represent mr thompson i have a lot of ground to cover and i actually want to focus on get that microphone closer to you thank you absolutely i have a lot of ground to cover i want to talk about the search warrant  mainly because the government hasn't really engaged with the arguments that we made that the search warrant officer i will do my best no ject i'm going to do my best to talk loudly the government hasn't really engage with the argument that we presented that the search warrant in this case was fatally overbroad and that it lacked factual foundation for drawing the conclusion that mr thompson was engaged in drug trafficking if you look at the search warrant that was issue to search the contents of mr thompson cell phone and appears at the record at e r two three eight the april twelfth search warrant was premised on this idea that mr thompson was a drug  trafficker the problem is and if you break down the search warrant affidavit into its constituent parts there simply wasn't any factual foundation for the conclusion that mr thompson was a drug trafficker the search warrant goes on at length about have the pistol was found under his seat and he had been convicted twice of state felonies and alaska that he had been convicted of the federal felony of selling cocaine right two thousand and one yes ok so drugs gun that he had for outstanding anchorage police to department warrants and then he was out on conditions of relief that he so what the officer attested that these concerned indicated that the firearm was for for the protection of his cocaine and illegal drug dealings wright said the officers say that no warrant that's that's their thing are right and then the officer stated that he learned that the fire reported stolen to the anchorage police department and that it is fourteen your experience us and alaska state trooper had imparted him to the insight that people use cell phones to conduct illegal activities and th keep record of these conversations and he further noted i think in the affidavit that people use their cell phones to take pictures that themself an illegal activities right and that's pretty much the long and short of it judge  comparisons between this case in united states versus weber that was a case where you had an affidavit submitted for a search of the defendant's property for evidence of child pornography the defendant had a prior arrest for child pornography possession know that under united states versus riley that the supreme court has has flagged the fact that cell phones are uniquely capable of storing vast amounts of information and in fact searching someone's phone you can find a lot more information than you would if you were searching somebodies house unless of course the cell phone is in the house but going back to the web or and companion case that was cited in the reply brief united states versus underwood the the proposition for both those cases is simply that when there has to be some sort of nexus some sort of explanation for why that person whose property is to be searched fits within that class if you break down the affidavit at again at your three three eight there is simply nothing there to conclude that  mr thompson is engaged again specifically and drug trafficking and let's talk about the circumstances of the traffic i don't have a prior for selling cocaine so that your argument would be a little bit better if i were the person on the search warrant right well and certainly a nearly decade old conviction for crack that i think is probably the most arguably relevant aspect of what they what they've included in the affidavit but again going back to weber there you had an individual who was in might have been an assault i don't know off the top of my head but the point is that there are the facts of the of the traffic stop we have a firearm in the vehicle in which there's three other individuals besides mr thompson ok they've got that fact they've got the fact that mr thompson might have lied about his identity ok that got that and then the affidavit goes on to say that mr thompson was caught with a white truck the substance of an disclosed amount that nick tested pot presented positive s cocaine not and there's no description about the amount just as white powdery substance we're not talking about large amounts in any event and it doesn't disclose what the basis for believing that this is in fact ok just as nick test isn't explain when nick tested as there is no ind of drug sales we don't have any kind of pan oshie it's there's no scales there's no records of transactions there's no witness there's one dish that not that he was a drug dealer at some point of sale some point with something that's ecstasy he was arrested in connection with this conspiracy there was i think twenty thousand tablets of ecstasy that were seized the search warrant application in that case said you know the defendant was arrested in connection with this conspiracy and i have reason to believe that the crates that he was caught handling contained ecstasy tablets and again the affidavit goes on at length about the habits and characteristics of drug distributors drug distributors often keep records of their transactions and so forth but again nothing to lay the foundation for concluding that the individual was in fact a drug distributor same problem here you can hold you affidavit side by side and i would say that the distinction the distinctions between this case and underwood are trivial and at the record i believe it was approximately thirteen minutes into the stop before mr thompson was informed that the officers were asking for his identification because they were concerned about the seatbelt violation so given the fact that mr thompson at the time of the stop was on the phone dealing with the family emergency has been a brother has there is son has been shot you can understand why in the circumstances when an officer is asking for his identification again without any explanation for why  mr thompson's a vase of answers without knowing the basis for the officers claim of authority shouldn't be factored into the reasonableness analysis basically why should you say that because there are so many different reasons why people don't want to talk to officers and if you're mr thompson you understand that simply telling the officer i don't want to talk to you i don't and i think to say isn't really an option and walk to you wouldn't be on the move that would have been the end of it except for the fact that most people and again most people understand that thompson chose not to remain silent but until a phony story and the officer chose not to tell him why he was asking for as an avocation and that's again i guess there's some tension here in terms of the fact that an officer as you pointed out is actually your client might have been better off if he gave this true thompson was giving these false i d s but in terms of the basis for the arrest moving forward to that i think we've made a pretty strong argument that under alaska law the circumstances under which mr thompson was arrested did not amount to probable cause to believe that mr thompson had committed the offense of false providing false information to an officer and that because no seatbelt take it was actually being issued that the officer didn't have the right to detain mr thompson and we would call out the fact that even the the officer who arrested mr thompson it was the university of alaska fairbanks officer boudreaux disclaimed the idea that he could have cited mr thompson for the seatbelt violation he said this is a trooper case because mr thompson was pulled over by an alaska state trooper if there's going to be a ticket issue's going to be done by them not by me so in this situation where we have this nonexistent seatbelt violation we would just say that th circumstances underlined the detention and ultimately the arrest failed to comply with the fourth amendment look i've got about four minutes twenty seconds and i'll reserve that for the bottle thank you letter from the government good morning may please the court my name is will taylor represent the government in this appeal and i'd like to start off talking about the search warrant on the search warrant wasn't just seeking evidence for evidence related to drug trafficking and also the requested evidence for felon in possession and for felony possession of narcotics so there's three different crimes that were being investigated out of the search warrant so i mean there's certainly sufficient gross it alone on   you're searching for sale what justified that and given the facts on the table except for perhaps the gun under the seat that's about it well under were under would have personal use of marijuana and then they got a search warrant for  house for distribution of ecstasy so there was no nexus between the drugs or anything of that nature so i think you have you have the false names you have his prior convictions and i think you can make a logical leap he's just lying about his name he didn't want them to to suspicion of sale so i think you have the gun that happens to be stolen as well and that's that's kind of a known trade for people involved in drug trafficking that they will often trade guns trade drugs for stolen guns you also have seven hundred ninety six dollars in cash you have him lying about you have him lying about his name again it's just a fair probability but the trafficking again is not the only evidence that the search warrant was seeking it was also seeking evidence of the felon in possession and of simply possession of narcotics so i think when you look at the totality of all that and you know having a drug a federal drug trafficking possession in and of itself is certainly  and so you know as as dramatic also testified i you know in his experience there's often evidence related to these crimes on the cellphones he relied upon in good faith he brought that that warrant between two different state judges first the seizure warrant and then the search warrant so i think it's objective lee reasonable for him to also believe that he could rely on that in good faith i do want to talk about the traffic stop if there's no more question about the search warrant at this point so a this court pointed out had mr thompson simply said i don't want to identify myself that likely could have been the end of the story but when you firm a goodly starts lying about his name he starts developing reasonable suspicion and if you actually hear on the audio he first says his name is anthony then says anthony collins so even right away he's kind of giving two different names and he then gives the second name which is christopher collins which turns out to be a real person but it's not him and that starts to develop even more reasonable suspicion but it also gives the probable cause at that point that false information has occurred because two different names have occurred so police officers must know that one of them is false and you even hear trooper howard on the audio saying  clearly you're not being upfront with who you are they then get him out of the car they ask him for his name again he gives a third name so then you know not only to every single suspicion to continue in this investigation but there's probable cause and he specifically told you're not wearing your seat belt we need to know who you are so all of this occurs within the first thirteen minutes of a traffic stop and as as this court has held previously fourteen minutes is considered a reasonable period for a traffic stop so there's two different alaska statutes that play first is the the authority to detain a person when being stopped or contacted for an infraction or a violation and what essentially if you're stopped or contacted you have to i identify yourself and if not you can be arrested and brought before the magistrate to identify yourself and the second is false information and he actually was arrested for false information so even though he wasn't issued the seatbelt citation he was arrested for the false information which is he gives false information and one of the subsection is with the intent of implicating another in an offense so when he gave the real person's name while being the evidence that was found on his phone he was indicted for possessing the gun on or about march twenty second so march twenty second is the day that he was found with a gun under his seat the argument that there's a varian where we put to wit language a smith and wesson model sixty thirty eight caliber pistol so that's the same gun that was seen in the photo on his phone and the as the case law from the circuit other circuit to said jury had a question and then there's a dance think osama between the lawyers and the judge and then ultimately there is that decision to instruct the jury and a certain way i think counsel for defendant a policy had originally proffered a certain way that he would like to the court said well no i'm not going to do that yes but then all do that and then everyone agreed that that w was seen wearing when he's possessing the gun on march twentieth i said he was caught red handed when he had pictures of the gun and i said if you only focus on the traffic stop sure there is potential other people you anticipated that you've got a picture of them with i don't think you can see the serial number on it but it looks like very similar and there are some other marking on that gun that makes it look very obvious it's the same gun right correct and  the car because what you know he had it two days before but that's out of the defense attorney tried to characterize it when the jury question came in but that's not the way that it was argued it wasn't a this is circumstantial evidence that he knew the gun was in the car it was evidence that this is his gun and that's why i was invited on or about march twenty second and again on or about it we have the argument and record right it's in it's in the supplemental i did submit it and again you'll see these quotes and it's not the evidence wasn't again presented to highlight that oh he should have known the gun was in the car it's this was his gun it was continual possession and even when we got the jury question and you know i acknowledged before the judge i said correct it's it's been our theory that it's continual possession but find the jury could find he possessed it merely on march twentieth that's within the on or about language the only other i guess potential way to indict it would be march twentieth march twenty second or i guess two separate counts but as this court found that be on or about language gives the government substantial leeway and how to bring the charges but you know even if even if this court were to find that there were a material difference the second question is was the variance prejudicial and i think that's a hard our you know hard you know standard to me here because  obviously knew about what evidence was going to be presented at trial as the whole basis for his his suppression motion he knew that this this gun which everyone agrees is the same gun that was in the indictment was going to be brought in at trial  he even sent his defense investigator to the hotel where they knew the photo had been taken to verify that one of the passengers in the car had actually checked into that hotel and he cross examined trooper trooper vick extensively about well isn't he just kind of showing off his shoes and isn't this a michael jordan had to and things of that nature and even in his closing argument he focuses on the photos as well he said yeah sure there's photos but there's no contact he gives context he gives an example  you know taking a picture with a fish that someone else had caught or taking a picture with the you know of someone else's jackpot down in las vegas so you know neither of the factors in a variance analysis are met here because again the date is so close in time and it's the same weapon as i point out it would probably i mean it would be different if it was obviously a black semiautomatic glock that he had in the picture and the jury starts well can we just convict him on that and then is no but when it's the same gun in that two day period there's not a material difference you know essentially there was two competing narratives at trial which is the defendant's narrative that it was the driver david treadway is gone all the way through and the government trial and again i know the pellant kind of folks as well there wasn't enough evidence at trial to show that he was drug trafficking i mean that was by design we we agreed that we wouldn't bring in evidence of the drugs at trial  but when going through the phone he said he's transferring money in a well fargo account for a taming teen who was later federally indicted and pled guilty to drug trafficking he was in possession of cocaine he's got photos of the gun on top of marijuana on top of money and there's also another drug there's another drug transaction discussions on his phone you know looking at the other there's no plain error in finding that four point again we have two different warrants that were issued and also a federal magistrate a federal district court judges also found there was probable cause so i know that that's not the end of the analysis but i think it lends some weight to the officer was you know also objectively reasonable when he believed that there was sufficient probable cause there and again you know even if this court were to find that there were insufficient evidence of the drug trafficking nexus there's also the felon in possession nexus and simple possession of narcotics  thrust of the affidavit in support of them i don't know if that's if it was the thrust but it was all i mean it was specifically included and evidence that he was searching for i think that i'm running out of time but just by nature there's going to be more evidence or more information in the street presented to the judge on drug trafficking and felony possession is found obsessions relatively straightforward drug trafficking can be a little bit more complex or based on specialized knowledge thank you thank you when you're dealing with a bare bones affidavit well it's a little more but obviously at least one i don't know if there weren't there are two different search warrants i don't know if that the record shows it was two different judges or as far as that goes but then you have the district judges well and so well that has isn't the end of the argument and that certainly isn't you've got and it's i mean it's not just it's it good faith i mean that a reasonable officer would know that this wasn't that a valid search warrant right right and we would say that given that webber which is the primary case we're relying on is over thirty years old twenty say that given that there's simply no nexus there's no there there within the four corners of the affidavit there is simply nothing there to draw the conclusion that mr thompson is indeed a drug trafficker and as the court has pointed out there's no discussion about felon in possession in the four corners of the affidavit it's at the very end where it says i'm asking for permission to search for evidence related to felon in possession but there's nothing in the contents of the search warrant to say why evidence related fall in the possession would be on the phone very broad proposition but certainly in order for the magistrate to perform his or her function you know to be that neutral and attach magistrate there needs to be a factual foundation for drawing the inferences that the officer wants and the draw if there are they don't lay the factual foundation for the further conclusions it's a foundationless conclusion i mean those are the exact words this court stated underwood going back briefly to the arrest the government's position is that you know m thompson's various false statements were misleading you know they were intended to incriminate other persons and so forth but the government doesn't go back to what the government doesn't point doesn't acknowledge is that the alaska court of appeals has states excuse me alaska versus erickson that when a person is being detained in connection with an infraction a seatbelt violation in that case that person isn't being detained in relation to a crime and that's the prerequisite that's a woman for false information to an officer the person has to be detained in connection with a crime a simple violation the maximum penalty is a fifteen dollars fine and the government hasn't responded to that  know at the end the date the photographs that were found on the cell phone were perhaps the most damaging part of the government's case and i think that the comments by the jury indicated that they were distracted by those photos i mean the questions the question that they asked the court was  sentially can we just convict them based on what we saw on the phone do we even need to talk about the car at the same time i think the way the indictment was was was framed in the way this case was was argued to the jury this was actually about the traffic stop and that's the defense was and tessa painting was an argument over a traffic stop the circumstances surrounding the traffic stop and you know because the photographs which were found on the phone were so prejudicial and i think we're so prejudicial in the sense that they were properly admitted but nonetheless distracting to the jury i think that if this court does find that the search warrant was invalid that i think there is no other recourse but to reverse this this conviction and send it back to the district