the morning may it please the court andrea harris from the federal defender's office on behalf of mr le marcus thomas there are two key reasons in this case why the district court erred in finding that the good faith exception applied to save the invalid search warrant in this case first and foremost the detective did not reasonably rely on the warrant that was issued by the magistrate in this case instead he relied on other information that was known only to him that was not shared with when considering application of the good faith exception this court has said many times that the court should examine the totality of the information that was presented to the magistrate in deciding whether the officers reliance on that it allowed reliance on it in a defective warrant where there were uncontroverted facts that were inadvertently emitted and i think those two key things are key number one that the fact was uncontroverted and number two that it was inadvertently admitted  and so the information in that case that was omitted was that the defendant mr mckenzie coote lived in the place to be searched yanar they forgot to staple excite me that the arrest warrant to the search warrant which would have put the date right in front of the magic in mr thomas is right there is there was a reference to an arrest warrant and if they had attached the arrest warrant to the search warrant so that the date was in front of the magistrate would you say that there would not be a stone this problem there would probably not be a stay on this problem that was the main holding into a while but i would argue still that there was still not probable cause to search the party to search the phone at all so then then what you have is clearly probable cause to support that the officer is investigating this aggravated sexual battery that there is this report that children made these allegations and the defendant corroborated these allegations but there's still nothing even if you attach  the leon determination because it seems to me in these cases what you have what you have to ask yourself is is what happened here  the kind of police misconduct that really need to deter right and the the officer had quite a bit of information indicated that you can't put officers in the position of second guessing a magistrate determination i mean it's no i but i but i think what the key is is that there has to be objective reasons for believing that the officer relied on the magistrate's determination of probable cause and here we don't have that i mean clearly the affidavit is clearly lacking  the officer has and i do actually can i can go back to that about the affidavit being clearly lacking on the nexus question i understand that some you think it on its face there wasn't enough there to show nexus in the district court agreed but even if you don't go beyond the face of the affidavit are we already into leon territory a nexus i mean it seems at least kind of a close question if an officer says i mean anderson says already we can kind of draw common sense inferences about where evidence might be found and on top of that you have the officer coming in saying look in my training and experience when sex offenders do this they do keep souvenirs on their cell phone absolutely and maybe not enough for probable cause maybe just not enough to tailor to particular guy this particular situation but i would think we're in a gray zone under leon already just on the face of it welcomes to nexus i think we would perhaps be in a gray zone if the officer had included  information that i talked to the children's mother and she said that he called me or nothing i smell her whatever you think is that no right no reasonable officer could think that when i under anderson  allowed to draw commonsense inferences about where evidence will be found and on top of that i say in my personal experience and history i think i'm going to find evidence on the cell phone because offenders who commit this kind of an offense keep this kind of thing on their cell phone no reasonable officer the sufficient nexus to this particular phone there was no evidence as to what phone number he called from what phone what phone was it hatched this elegy cell phone there were two phones found during the search they said there's this other phone why what was the reason to believe  what i guess what i'm trying to get at is so if the if the if the affidavit had included that information about some connection to a phone then it may have been whether the officer believed she had problems as a question that goes back to a judge wilkinson was talking about just explained to me in kind of common sense terms what am i worried about here i understand when it comes to police practices i totally understand that officers might have an incentive to keep exculpatory facts away from a magistrate or put in false facts and in that way kind of manipulate the warrant process but why should i worry that there are a lot of officers running around out there who have enough x to get to probable cause but don't put them in the search warrant affidavit running the risk that they're not going to get the warrant and why is that something we need to worry about and deter and that's what i'm not getting well i mean there peril and so that all officers blow it at their peril that's what i'm saying like what is the incentive of any police officer anywhere who has some information that will push an affidavit over to probable cause to say i am not going to put it in well the incentive here was well we don't we we want to avoid media it's really made a misjudgment here i mean the policy was always put in enough for probable cause just don't put in more so he made a misjudgment about what would be enough he thought that by relying on my own my experience  my expertise and apparently by referencing the arrest warrant and putting everything in front of the magistrate that was wrong but what what what what's the incentive for police officers to sort of systematically get that wrong well i mean the incentive was to avoid them the public being aware of the search warrants and so and i think the you know the constitution requires that these affidavits be under oath an affirmation and that a neutral and attach still be it seems to me to include the information well and i but i think you know without you know even not looking at the media scrutiny which is what the officer gave as the disclosed and the rest i don't know who that was at play here or not but right but there but there are procedures there are statutes there are mechanisms mechanisms in place to protect that information  from the public or from you know outside review by sealing the warrants and so there are mechanisms for dealing with the sorts of things that don't allow the police officer to say that just when you come back to this is this is not a this is not an officer who has tried to skirt the warrant process and it's also an officer with a lot of information well he has he has a lot of information about the aggravated sexual battery that he had already obtained arrest warrants for i disagree that he had a lot of information connecting the crime to the particular phone that was was searched mckenzie good was a case that allowed that the information was that it was a minute was the defendant lived in the house the place to be searched into that was it was inadvertently a minute but it was it was necessary because a war process the officer here applied for a warrant on two different occasions number one he applied for an arrest warrant and then he applied for the search warrant so at this warrant objectively believe that there was probable cause and he was i don't think that's the way we framed it in mckenzie good i think we said no no leon talks about under all the circumstances and so the question is more did this officer kind of act reasonably rely on the magistrates determination and and that's the key and so in mackenzie good it was reasonable to rely on the match to its determination because everyone agreed that this it was just a simple oversight that this they didn't say that the house that they were searching was was but it was reasonable to rely on it not based on what the magistrate knew it right but the magistrate only knew what was in the affidavit it would have been right but there was plenty but that was relating specifically to the thing to be searched here the thing to be search was the phone and there wasn't sufficient information for that thank you there's really morning they please the court am nancy haley assistant u s attorney for the western justification if in the united states i think the court has already focused in on some of the obviously relevant points there this is not the case where somebody was trying to hide the ball this is not the case where we did not have the facts that were sufficient to create probable cause to search a phone that was a lawful e c s pursuant to a search incident to arrest this is more of a case where an officer totally understand your position on why there's enough there on nexus for probable cause but what exactly is your argument on staleness why is there enough information from which the magistrate could conclude that there's likely evidence on the phone and it will still be there because  referencing type of time period and what do we get here right and as opposed because i'm looking at the affidavit and i don't see anything about time period correct it does so our affidavit or the affidavit in the thomas case specifically references the page one twenty four of the joint appendix it appears that the magistrate was aware of what case this ad was referring to because there is a part where on cross examination  detective coleman was asked this is towards bottom of j one twenty four question that was after on july twenty first you made a statement that the issuing magistrate did not ask any questions at the time detective coleman applied for the search warrant correct answer correct question that was after on july twenty fifth you stated the issuing magistrate seem to be aware of the case against thomas and asked if the search warrant for the cell phone was related to the subject was brought in the other night the right answer correct and i don't i know that there was probable cause is not your main argument but i was just trying to get a handle in thinking about kind of good faith in the officer is the idea that maybe the officer made  clerical error meant to attach the affidavit or is that that the officer reasonably believes what referring to another document that's in the same courthouse is good enough i don't know what that resent anything in the record that would suggest that although i do think as a as a good faith type of thing what he did should be considered sufficient there's only one one magistrate's office this would have been filed in the same place it was within i think  he's referencing i rested somebody for molesting a couple of boys he's then saying on that day i recovered a phone so i think that would be i would think that would be sufficient and at least a i mean the problem with doorbell in large part was that there was an allegation by i think an uncle that one of the children or a step uncle one of the children had referred to seeing nude pictures  that particular case one of the biggest holdings of course was that you can't use just child molestation to search for child pornography and here we had an officer who was trying to broadly search the phone of course but he was searching for evidence to corroborate his investigation on the actual aggravated sexual abuse of the two minors that he had investigated mr thomas for so i think that's reasonable and i think of course in terms of any type of issue of staleness the the offenses were alleged to have occurred in october they were actually its number that came out at the hearing because we found out there were some other acts that the defendant had done to another minor on the original date in the arrest warrant but it was one month apart and within a member of the gym three months they recovered the phone and i know ms harris was suggesting that it's uncontroverted that this phone was used i think it's a reasonable inference to say that the phone that was recovered from the defendant on january fifth would have been the phone that he would have used to contact the family members or to try to set up another  you the question about the phone being recovered at the arrest and it goes back to what judge wilkinson was saying about home searches being different if he had been arrested and did not have a phone on him would this exact same affidavit have given have been enough for probable cause to search his house for a telephone i mean if you have the officer coming in and saying look i think people generally keep stuff like this on their phones can you search the person's house it's an interesting question i know a search that's my real concern in this case this yes seems sort of low stakes right i don't mean to suggest that it's never low stakes but in this case the police already had possession of the phone the only question is under riley whether they can search it but what about when they don't have possession of the phone same standard for getting into a house to do a search of the house well i think like any digital media as long as you can establish the nexus between the digital media and a crime and that would work so i see my concern right and so i think if it would have been of course preferable for the detective to have put in facts relating to the information that he obviously had about the phone or a phone being used during the commission of the crime or  well you know i don't know that we would have been able to go into the house and do what they did and doyle and search for child pornography i think if you could have stablished that there was a nexus to say that he had a phone and that that would have had information including perhaps text perhaps voice mails things like that we would have been able to search for that phone but in this in doing it was a search and seizure issue in this case it's already lawfully seized and it was just the subsequent search of that particular phone so i do think that there is a distinction and i would point out i know what the court has has has been highlighting this i noted in a funny one of the cases there was a think it's davis basically said  a deterrence value has to be a necessary condition but not sufficient and it said it noted the recalibration of the cost benefit analysis post leon to focus on the fla misconduct in this case there is no evidence that the detective intentionally omitted anything he was trying to do what he should do was try to submit probable cause official probable cause p found there was no evidence that the detective was trying to help hide the ball and certainly the fact of saying that this phone was used during the course of the commission of this particular crime wouldn't have been the type of fact that he might have try to minimize  in that particular warrant so i think he thought he had sufficient information a magistrate thought he had sufficient information we give great deference of course to magistrates in these types of cases it was objective lee reasonable the other thing too was it looks like he had consulted with a prosecutor or an assistant come of the tourney out of the winchester office or comments attorney's office prior to getting the arrest and search warrants and i know that is a big issue in times are doing street crimes that the at the moment and they have to do something at the moment if they can't get someone they're probably just going to call the magistrate and see if they can go get something but i don't know that for sure you're  this case is pointed me toward the use of the term inadvertently omitted in mckinsey and whether that's written narrowly or broadly and it would seem to me keeping with what judge wilkinson pointed out about we're looking remember that we're looking at good faith bad that inadvertently could be broadly construed to instances where the officer had information but was relying on the ma case i think it should be interpreted to say that as long as you're not trying to hide something you're not trying to purposefully omit something i think it should be interpreted fairly  detective did a fantastic job incredible job investigating this case and it was clear there was probable cause for the aggravated sexual abuse and there was probable cause to search the phone that was seized so it's a great question i'm not sure where the boundaries that includes omissions and so the idea of grafting you know in a specially rigorous inadvertence requirement over onto this other leon exception seems just conceptually difficult to me and i really am having trouble with and it's an interesting question although it has been the case even prior to consider it of course that you could look outside of course or it has been very clear this what's been very clear that you can look outside the four corners of the warren so i do think it's something that may have to do with dissented that the majority had found that the good faith exception because the affidavit was not so lacking in addition of probable cause but the significant part of the dissent that i think is interesting and helpful here is he addresses the government secondary argument in that case which was not decided by the majority but which is exactly the case here that the law enforcement officer knew but not did not tell the magistrate information that established this confidential source that was reference reliability but didn't include that in the affidavit and did not tell the matched about it and what judge michael bennett analyzes whether we you know whether the court can consider other information that's just known only to the officer in and a there whether it is objectively reasonable and what judge michael says is what the agent knew but failed to tell the magistrate is irrelevant to the officers good faith because leon requires an officer to have an objective really reasonable belief that his affidavit gave the magistrate a substantial basis for finding problems i totally understand that argument i mean i can see i see the argument it just seems to me we resolved it in mckenzie good and i know i think  you're kind of preserving this because there's a circuit split on this and you may want to well there's a circuit split on whether other information outside the four corners of the affidavit can and can be considered and when is he just said that this court has said over and over again that other information outside the poor corners can be considered i don't think aside from mackenzie good and i think this is kind of a very much more limited hold and then the government argues for what this court has held is that other information that was also presented to the magistrate but that wasn't included in the affidavit can be considered nat's leg that's edwards that's perez so this even though the information wasn't in the  department policy of providing just the minimal amount of unintentionally got it wrong well he got it wrong but he got it wrong at his peril and so mr thomas has a right to have the information you know magistrate make a neutral are you trying to make is is is so are you trying to make a distinction between an officer who comes to a suppression hearing and says i thought i put that thing about the phone call to the mother in the affidavit my bad it was sort of i thought it was in there and it wasn't an officer who comes to the hearing and says i thought i had enough for probable cause without it my bad i should've put it in those are two different forms of inadvertence around is ok and one is not well here i mean there's no evidence wrong right so how is that he's not a lawyer and that's why we have a detached neutral national sort so how is that different from the officer who comes and says i thought i wrote it down on the affidavit but i was wrong well because in that case know i mean either way they were both in an american if he did she knew the information and intentionally didn't put it in the affidavit because he didn't think he needed it in account good he didn't include it because he just simply forgot probable cause i think like so to compare if the officer had forgotten to put in the affidavit that mr thomas had a phone on him when rested him on these other warrants that would be that would be an inadvertent thing he forgot to mention that there you know the person had a phone in his pocket and that's what they wanted to search just like they forgot to mention that he lived at this house that they wanted to search so that's kind of a different thing then forgetting to include all this other