well certainly i i believe we should all are dealt with is ok so then if we do united states versus lara that suggests that we don't look again at violent felon who we're looking about is we're looking at whether in this particular situation we profile we do is we wait then the interests of both parties and try to see whether we are going to suggest  your client is probation terms explicitly allowed the search of his vehicle in laura they didn't say anything about a cell phone your client it's a vehicle has a lower privacy interest and than cell phones doesn't that weigh against you winning on a laura analysis well in there was also searched my client residence i understand but we're talking about the vehicle that's what we're really talking about we have to suppress anything that was in the residence right you're not interested in that but it's all one search and it's also tell about a vehicle different from a from a residence so i understand that you didn't you didn't like they went into the ok i understand your argument but otherwise laura has a tougher case than for helping the client then in this case if you can include the residen then then you really lose in that particular instance let's go to the second the search conditions of the probations specifically included the property that was to be searched and that didn't happen  laura so what do we do with that well i mean that certainly is a factor that i'm sure the government is going to argue the favor of well then we let's go bare and struck  are we going to really suggest even though no one can go to the house that baron's truck has a higher expectation of privacy even the cell phone i think the touchstone of this analysis that is that this was a suspicion  in the supreme court is now just a minute we're talking about suspicion will search we're going through the if you will the inquiry we make on the totality of the circumstances whether we're supposed to do that i'm just going through all of the things that we have to say about your particular client and what we can say about there because when i get to the government's interests i'm a little worried about your ability by i think that pressure on i started at the end point i think that the starting point for this is again this is a suspicion a search the supreme court has never authorized a suspicion the search for a probation or and this court has never authorized a suspicion was a search for a non the supreme court the supreme court nor this court has ever authorized that type of a search other than in united states versus baker which was over rule well we had caning king applied to violent felons and now we got  a violent felon approach now we're looking at which try i was trying to go through i guess i really don't know where you're going because it seems to me that kingda is not an ir reviewed read from laura king does not fully provide the answer the panel must evaluate the circumstances of the particular case before it to determine if the search was reasonable so we're determining if it was reasonable and the first idea that's why i went through the things that laura went through and i think i came to the same i mean now i'm trying to see if you can give me a reason to suggest that your put this particular search was worse for your client than it was in the laura case give me something to hang onto otherwise you lose well again i'm not saying that under that the ultimate totality test that mr situation is better than that and the appellant to laura i mean obviously laura was a cell phone search and it's he had a stronger argument under to tell but again the starting point his suspicion was searches for king the language inking creates a lot of problems for people who practice in the district court talking about the question of whether king created a discrete group of probationers for whom these searches will be per reasonable and that is violent felons or because i think that's how it certainly was interpreted originally in our case and i think that the government made the same argument tomorrow that that if a probationer qualifies as a quote unquote violent fel that because the health of or have not been convicted of a crime of violence they move past that question so i don't think it's been addressed and certainly the district court in this case made a specific finding that mr barone had been convicted of a crime of something here that's related to a gang shooting and that is that could be a violent crime so why can't the why can't the but what can we take that into account as we sort of put all of this in to vote tally of the circumstances and therein lies the rub i mean if if we're going to take it into account one time and that's that's what's going to happen if we're going to approach each of these cases on a case by case basis and i think respectfully this court has to say that but i think if the government is arguing that there's a two prong test here i think there's implicitly a two part test i think that the king is is it is unclear and i think that we need more guidance on how to approach these searches and i didn't ask for time for  mourning your honour's may please the court mark rey for the united states this issue should come down to a balancing of circumstances it's two and only really two competing interests the strength of the defendant's privacy interest  the strength of the government's interest in a suspicion the search regime here when this court undertakes that balancing this really isn't a close question at all the fact that the defendant starts as a probationer this court and supreme court has said that significantly reduces their expectation of privacy as judge smith pointed out the fact that this defendant had an unambiguous search waiver which there was no question applied to his searches of his vehicle and his property and that's what was searched here his truck and his backpack that's where the incriminating evidence came from i know my opponent wants to talk about the fact that the home was also searched i don't think there's anything in this  that allows standing to complain about a spurt of a search excuse me were no incriminating evidence was found here the only thing that was found in that house was proof of gang membership that has nothing to do with the elements of the three crimes of which he was convicted which were filmed in possession of a firearm and possession of cocaine and possession of marijuana so with all of those two of the things i said previously his privacy interests if this is where it starts with the average citizen it's already down here and then on top of it all as the supreme court held in south dakota versus opperman is this court has reaped repeatedly reaffirmed vehicles already have an even lesser standard of privacy so right now with half of that test i would respectfully submit that the defendant's privacy interests are minimal now on the other side of the balance as king pointed out probationers there are already out statistically proven higher respect to gun and weapon violations in particular was severe it was off the charts unlike the defendant in king for whom this court approved a specialist search and in that case there was only one prior conviction for domestic violence here this defendant had two separate gun related felony convictions in just the three years before the search and in fact he incurred the second conviction that was the state felony possession just three months into supervised release for his first federal conviction which itself reflects an alarming inability to comply with lawful court orders on top of that he's a gang member and on top of that i mean he's still  very young man he incurred those two felonies of which i spoke when he was twenty one and twenty two i believe is the record shows just starting when he was sixteen there was already trouble getting expelled from from high school having a weapon having being arrested for assault with a deadly weapon so the reason we bring that out in the united states supreme court said in knight's specifically that the probation status as having you know criminal history goes to both sides of the balance and even at page sixteen of my opponent's opening brief he conceded that the defense history characteristics should be relevant under the terms of the circumstances and what the government would submit that is if for just any run of the mill probation or there's already a risk of or citizen recidivism that statistics show this record it was severe and on top of that i know there was questions about exactly this fourteen which again is just one month before this disputed search authorities also came to learn that he might have been present during another shooting involving the same person re janice in the united states versus laura this court express y look to the reason for the probation search under the government's strength of their interest in that case the only reason for that probation search was that that probation or simply mr meeting with his probation officer  respectfully stated in the law or opinion but he didn't mean to minimize the importance of that it said that kind of a concern i believe the words use are worlds apart from concern when somebody such as in king was suspected of being involved in a homicide here the government respectfully submit where there's smoke there's fire this is very alarming the whole point of probation is to successfully bellwethers where there's smoke it's we're looking to see whether there's fire counsel you were doing was looking to see whether he might have been involved absolutely i appreciate that correction but again we would submit that still goes to the strength of the government's interest it's not like this was for perp this is of harassment this wasn't just something random i believe the quote from the deputy sheriff involved was that his name kept coming up in regards to some violent bad stuff and so that's exactly the kind of thing the government would submit is why you should have a suspicion the search regime and i guess the final point i would make about the strength of the government's interest here i mean it's interesting and king that was a from from the record from that case a one time domestic violence offender i would submit a suspicion the search using normally for cases of domestic violence i don't know that you're even going to find evidence on the perpetrator usually the victim bruises injuries here you have a receipt of this gun offender this is exactly the kind of thing that a suspicion the search regime is is well suited to disclose in this case is a perfect example this defendant it's six thirty in the morning on august twenty eighth two thousand and fourteen a quick search of his vehicle and a backpack in that vehicle found not only a loaded forty five caliber gun in his waistband he had ammunition clips rounds of ammunition a knife that had been filed down on both edges and body armor all in his vehicle it's unfortunate but i believe as the prosecutor said somewhere else in the record below the problem with this defendant wherever he is there always seems to be a gun and again i invite my opponent when he comes back up here to try to distinguish these you know these these circumstances because compared to lara that's one thing this case is miles apart from that you have a severely diminished privacy interest and yet the government's strength of their interest is very high and on that balancing the government summit this isn't even a close case mr brown's position is that this is report has never authorized suspicion the search is for probationers but the larger point that i want to make right now is that in the district court the government argued that mr barone belong to a discrete class of probationers violent felons for whom suspicion was searches are per se reasonable and lawful the district court agreed that mr barone belonged to the class and did not conduct the totality test that we have been talking about here today that's a fundamental problem with king that i understand this court cannot overrule king but i think it needs to be addressed with respect to that this is sufficient again this was a simultaneous search of the residence and vehicle and the government specific reason to suspect the smoke council referred to was over a month old that thank you mr lemon cases submitted