warlock's probable cause it was three respects first there's no probable cause to believe that griffin ever or in her possessed any of the items that the warrant request permission to seize and search for new there's no evidence that any of these items even exist there's nothing about a cell phone there's nothing about newspaper clippings or scrap books or any of the papers they want to rifle through in the first nine pages of the warren was the first nine pages of the warren to tell a story about a criminal investigation and then there are these last two paragraphs that are like a detour from the first nine pages and seen the copy  pasted from their second there's no probable cause to believe that any of those items were located at the apartment the search and third there's no probable cause to believe that any of those items you know if they existed in two thousand and thirteen contain evidence of the two thousand and eleven shooting that police are talking except in the proposition that over ninety percent of people on cell phones yes so what do you do with that fact i mean i know part of your argument is that we don't there's nothing referenced in the affidavit this is that suggest knowledge that he in fact had a cell phone but of crowley tells us that ninety percent of the people do does that there are just two things about riley one of the things really does say that about ninety percent of the american of americans are cell phone and i think it's we said something in our brief to the effect that some number close to that is inherently true riley doesn't say that it follows from that that there's probable cause to search phones really says that because of the information we keep on people's phones court scrutiny of these sorts of warrant should be particularly heightened but even if even if you doesn't even own a phone police and indeed they rely heavily on the fact that he made calls one afternoon on a prison landline it doesn't follow that there's probable cause to go to a residence wherever you may be found in searches on i guess i don't contain evidence and we have cases that say that that when people are involved in drug dealing that there is reason to think that the homelike contained the incidence of that tra certainly that can be extended to a case like this because someone is you perhaps you have probable cause to believe that they're involved in criminal activity they talk to people about it when they have a person landline into calls to his mother his grandmother and my dad i mean i'll ask the government is  electronics are repulsive tori's a lot of information about just conduct and where you have someone suspected of murder you want law enforcement to have a way to find out information that might lead them to be able to prosecute the person that they have reason to believe was the perpetrator and so what is there a constitutional p texting with at least you start your press finding his phone number finding phone numbers of associates he might communicate with in any other the word particular is in the fourth amendment any particular ised evidence to believe that he's texting with someone or that he owns a a gang crime typically want to gang member commit a crime they share information about the crime with their fellow gang members and typically they do that with cell phones and other electronic devices there's i'm not aware of a intuitive logic to that if that if that's the law that it and that would mean that any anyone who's in a gang who is suspected of criminal activity is subject to search at any time gangs or associates if the crimes if a crime arises out of the gang activity gang members are likely to communicate with each other and you know don't gang members talk to each other we think that severe probable cause to suspect someone of gang related activity therefore anyone in this gang his subject to search wherever they may be found for whatever you might find there you know we'll say award because it's where we're investigating this gang related activity i think that's still just passed to the general i mean a lot the last two paragraphs of this of this warrant are basically the sorts of conclusory statements that the supreme court disapproved and then they didn't send in our view is the first nine pages don't support the last two paragraphs or if you read the word from start to finish it's kind of an abrupt detour the warrant takes the bottom a thirty five or talks about this this criminal investigation and how they then monitors phone calls they find the car they look at surveillance and then at the very end there's a paragraph you know in your absence experienced gang members talk to each other and preserve evidence of their crime and we want to go to this guy's apartment of any search so then to warrant whether the warrant is his only valid or not that means that that is the government's abandonment argument i think i think we all agree that if there was no constitutional violation or if this was some sort of a spontaneous thing that he did if the police just happened to be on the block that day then we here we would have this argument if you just really got up with someone just going to get out the window the police just found it that would be allowed to come to people as mr allowed to knock on the door they're allowed ten asked to come in to talk to people they aren't allowed without a valid point to go in are they not allowed idea where is the line i think there's a couple of points about that that in this case first of all i think the line is when they say police search warrant it's all over the record that they said police search warrant when they approached the naacp it's an eighteen and a nineteen which is the search interview i mean if the government argues it has thirty six and thirty seven of their brief and for twenty one that there's no search until police officers crossed the threshold but nothing they cite actually supports that argument in this case there's this police officer to show up at a residence thing on the door announce a police search warrant those words have legal effect if one on the inside understands that no matter what they do the police are coming through that door just like the words you're under arrest have legal significance police search warrant and issues a search response to that please can we talk to you is somebody inside the house there's a gun out the window and and lands in a public area where the police have every time limit to be because they can go into public areas then you wouldn't dispute that that's a search was under way and the only case where we found actually suggest a real why this is the bailey case we say was brief and they talked about searches incident to executing a search warrant and they did they say that the search warrant was underway when police were walking up the steps with a search warrant to execute it and they encountered the defendant on the front steps they had said search warrant yet they had turned the key in the door anything like that they encountered him on the steps they detained him and asked his help to get to get inside the house and you know bailey on the front steps and this is you know bailey describing michigan and they say you know the moment the search began was when they were walking up the front steps to execute the search warrant and then kind of this person on the front steps so i happy to answer other questions the court has i would like to make two quick points about the sentencing i you know obviously for first two issues we have the court doesn't actually preach this but there's this one thing a clear think is accorded pages fifty nine sixty the government's player review is that that was discussed with the district court says that a first sixty three lines ten to thirteen is as your lawyer said your prior record really bumps up the guidelines what what his lawyer said is a fifty four line through a fifty five one twenty three and what mr zucker is saying is that although griffith has a lot of things in his criminal history just the sheer number of entries from some up to criminal category five which is the second worst you saying none of those things are particularly bad in a district court except that point and this i wonder why the case did not get briefed on it you know for three years do you know it's not there were something like fifteen interns so i think a you know i'm not sure i think it's no reason why the good faith exception of leon would not apply in this case under these circumstances where the officers executed the search warrant that was signed by a superior court judge and the government has also made a third argument independent of the presence of this search warrant here appellant abandoned the gun by throwing it out the window also before we go to abandonment can we talk about the probable cause slash good faith yes so  indicator that he has a phone as far as i can tell there's nothing we don't we have no reason to suppose that he has a cell phone now of course it's true that many many people do but there's no indication that he doesn't and as your colleague on the other side cornell one of the people that  from jail didn't even have a phone so it sleeps possibly doesn't know there's also no indication that if he had a phone it would necessarily be at the residence because most people with their cell phones i take  so unless he happens to be home at the time that the search warrants being executed and nothing in the morning tells us he needs to be home at that time there's no reason to even think that a phone that he has would be at the home it's going to be with him wherever he is and i assume that when he was arrested initially for something separate that no phone was recovered on his person at that point you might tell me otherwise but there's no indication to that effect so those seem to be at least significant questions about the existence of probable cause in a typical case the phone's going to be found on the person and they're going to be a question of whether the warrant can authorize a search of the phone that's found on him which seems different than a certain circumstance in which you don't know that he has a phone no one's ever seen him with a phone at least we don't know that anybody has and you don't know that if he has a phone it would experiences for real realities practical facts and circumstances in here is your honour's pointed out in this appellant has recognizing conceded in his brief at the time of the search warrant the vast majority much more than the fair you know probability standard of americans had cell phones and use electronic devices this warrant was for cell phones and other electronic devices so it wasn't just premised on the notion that he had to have a cell phone and that was the way he was communicating with other individuals although i think that was the involves likely scenario here the warrant affidavit contained a specific statement from twenty two year veteran on the metropolitan police department who stayed in under oath in the affidavit and in his experience based on his training experience in working with other detectives electronic communication devices phones computers using facebook twitter e mail the internet were a way that closely affiliated gaining crew members and then that any time there's a gang member that's accused of that suspected of being part of a crime necessarily you get a warrant to search a residence where the gang member difficult question than what we have on this route nor do we have here what more we have is that we have that this was a crime that was committed by multiple closely affiliated perpetrators you had three people which is what the affidavit establishes who committed  but on the day that the police on september seventh take additional investigatory steps in the investigation speak to appellants mother about the car that on that very day you have evidence of communications between appellant and other members family and other closely affiliated crewmembers a balance of the ongoing police investigation and so the affidavit establishes that this is more than just a crime in the abstract it's committed by someone who  affiliated with the game this is a crime committed by multiple people working together who have in fact even months after the crime at the time that the police you know meet advances in their investigation who have demonstrated their proclivity to talk and communicate about the offense even when it's a proclivity to talk and communicate about the offense because they were talking about the fact of an ongoing investigation that just seems natural whenever there's an investigation going on at all they'll have conversations about  photographs of the car you know at the scene of the shooting these are whether you say that they are you know actually confessing to the offense these are communications that would be relevant and highly probative to establishing which is to say that there's coordination and then conversations about the investigation into the events demonstrated you know proclivity to have these types of communications not just you know they were willing to have these communications on a recorded phone on jail phone and you know at the time perhaps i'm able to use the cell phone or have all access to e mail but then you have a period of time shortly after this communications where appellant is no longer incarcerated where you have statements from there to tap here that it's closely affiliated gang and crew members are known to use cell phones e mail twitter facebook  communicate about their activities and about crimes that they have committed and it takes some issue with the characterization of this residence not being appellants residence at the time that affidavit established that oh yeah electronic devices if you have additional facts that are that the crime was involved some coordination and that there is some addition that in fact the particular person actually has communications via landline or any that it would have been would have this i was told i said you had you know a phone number or shown that you know he did have a cell phone in some the steps that the investigation is taking to find out the phone number or find out the phone number and that are being communicating with each other step one is still get the phone so that you can then send a search warrant to the provider and learn the phone number affiliated with the fund and so to some extent w police are doing here is moving in in logical sequence knowing that here we have individuals who are communicating about matters concerning this offense knowing that this is we're appellant is staying the most likely place that he would keep you know his computers or phones that he uses for these communications and coupled with the specific statement from the detective that cell phones and the electronic communication are prevalent and used by gang and crew members exactly what we have here the warrant establishes a substantial basis to conclude that there's a fair probability that these cell phones will be found here or other electronic devices and would have relevant evidence related to the crime and even then you know there's a question about whether you know an additional fact should could have been necessary or would have been better to have in this war and there no reason on this record to kind of use the vero very narrow exception in leon and not apply the good faith doctrine here here you had a detective who went and talked there's no suggestion that there were false statements in this affidavit or material omissions took the facts put them on paper took them to you in a superior court judge who reviewed everything and who authorized and signed off on this warrant the warr on the bottom of the front page of the warrant their return and there were cell phones recovered in the apartment and the record as it stands today in this case does not contain facts about any subsequent search warrants that were applied i have that information i'm happy to speak out record that was outside of the record of this court is inclined to go but that was one of our points as it related most specifically to a challenge to the particularly of the warrant raise for the first time on the pill was that had that argument been raised below the suggestion that this war it was over a bribe because it authorized the search of the electronics that were recovered the government would have then and did not because it was not raised in the district where it would have been put into the record the information about subsequent search contact syria text messages or e mail that would be searched for date brains which is what you would expect in some of these warrants and here i mean we know that none of that was introduced in this tri i thought it was clear as far back as i'm bird that if officers arrive at the door and say you know police open up with a search warrant that what's police stop you know turn on lights and siren and draw a weapon and command you to stop and you stop at that point i think your actions are no longer voluntary you are c s you are under the police authority but if what you do is not comply with the police command or show this or any show with already so in the search contact that would be a police search warrant what you do is not open the door you know not stop what you are doing and submit to the show of authority but instead open the back window and try to discard in high with the evidence from the police who you know you know are at the door are seeking to enter the apartment the question isn't and in the government of voluntary mess at that point there has been no unlawful police activity that coerced the throwing of the gun because what the police have done is a show of authority whether or not just in the  view the answer is that once the suspect submits in a seizure occurred is abandonment that happened after that point had already does not say as you know separate from and not a fruit of any unlawful seizure and so here our position is that once this search occurred once you cross the threshold and through the apartment you know how the battering ram and begin to heal make contact and break you know the property to enter the door but  if somebody show if the police execute and arrest warrant and say i'm placing you under arrest and then the person that's out of the street and the person says ok you know there's no physical seizure is ok and he does this thing where he puts his hands up in them and tries to submission and collapses the timeframe of the submission and the act of abandonment which again would make it much more difficult question here we have thirty seconds that passed between the time of the not and when there is kind of the opening of the door at the beginning of any fourth amendment activity the search occurring and it is simultaneous with the not not with the opening of the door that the gun is thrown out of the apartment window and so i think that here the facts are search is a difficult phrase to use here because again you have to have either a submission to the show of authority which is what creates a seizure or a search and there is no kind of analogous lin about talking about submission in this search contacts this search does not occur if the police are still outside of a closed door having not reached the door in any way you know they have been trying to break down  i think they're actually come into the house and the someone says go ahead search things she has no no right to resist but there is some logic to the notion that once you are put in it's it's not really the search logic it is the seizure of logic where you know you're told we're here and we have this you know we have this authority to be everywhere in your place that you no longer that what you do is you can't just say no i'm sorry go away and i was going to have nine preparation for this argument read the case but a couple of points come to mind which is that if it is true that the officers were present inside the apartment that's a very different factual scenario than what we have here and there is i mean these can't be the proposition that police on the street even when they make this show of authority that would be coercive that would cause someone to feel that they are you know under kind of the police aren't you know losin sirens chasing their car or on the street you know coming to surround them even if they have weapons drawn in that situation if the individual makes the decision whether or not their consent of detained under those circumstances would have been voluntary that makes the decision not to submit and instead to you know rightfully and abandon property i don't think the search hasn't occurred or seizure hasn't occurred yet and instead of submitting instead of opening the door in response to what may be you know viewed as statement police search warrant we're going to come in with us and as far as they went here but circumstances that probably would not be a fruit and suppression would not be the appropriate remedy even after the show of authority was a muscle related do we do we know these kinds of precise facts about this case i think the far outside her and they're not going to towns and set testified that it was simultaneous with that that the window was opened in the gun was thrown out coupled with them the facts from trial that talked about the thirty second gap between the time of the not going to announce a police search warrant and when the door was first opened i think that the record of the court has here even if you said did the district court judge didn't make this particular finding explicit in ruling on the motion to suppress because the sentencing point i'll just point this court to disunite statement of reasons it's a government's position here that based on the language in that which is sealed and i want to reference i'm here for that reason and i remain would be unnecessary but even if it is it would be a limited rema warrant there's no choice about whether to submit or not the police are coming in that's what police search warrant means in researching the police shows knows that if you don't answer the door quickly enough for them to battering rams coming in to to read her diary do it's laser focused on two things the meaning of seizure and the incentives  dynamics involved in police spontaneously encounter someone on the street in order them to stop her very he says things like we have little reason to suspect a very few of these orders to stop will be unconstitutional we don't want to give people incentives to run from the police you're talking about split second decisions made by police officers and suspects on the street this is the fourth amendment rights were at their height in the home this is a warrant that was sworn out three days before a jury doesn't apply to this case the government also talked about proclivity if you look at pages a thirty two and a thirty three this is the warrant the phone calls are not a proclivity to talk at any time through the person that with with associates these are four calls in one afternoon to mr griffith made to his immediate family there's two calls to his home residence his mother and he talks to his immediate family about the investigation that's not the sort of proclivity the government mention here and also mentioned of practical realities we're not suggesting that they're one detail short probable cause courts asking for a line of trying to say that if you look at practical has nothing further thank you