device itself for the purposes of abandonment the warrantless forensic search she performs here using the expert to all celebrate demonstrates and shows how the fact intensive abandonment analysis they should be different from the contents of a password protected act which usually isn't an issue the fact that he allegedly made the statement that you could always get the phone if you wanted to paraphrasing of course but you know what i'm talking about  my understanding is that he testified that says that motion to suppress was limited to abandonment that he password protected in order to keep his privacy but i thought there was also testimony which of the district court credited that he had told the officers during the interview that he knew you could get to information on his cell phone even if it was password protected and i'm misinterpreting i think he believed that the cell phone could be rebooted and white and  started but that his information was password protected and that was his testimony and the district court credit to do is test my district court found him incredible with respect to the throwing out of the phone but the district court did not make a specific finding answer to his his belief friend the tool or the ability of law enforcement but don't we presume that the district court made any implicitly made any fact findings and didn't explicitly resolve the issue one way or the other don't we presume that the district court implicitly found facts in favor of a truly here i think the district court simply found that abandonment analysis was no different for the phone itself and for its digital contents and that's the finding that we believe is clearly erroneous here they found that they disagree we disagree with the district court's finding that society is not prepared to accept as reasonable and twenty sixteen or twenty nineteen a law enforcement can use a forensic tool here without a warrant the forensic tool at issue here is a deep dive forensic tool done by an expert detective which recreates files on a password protected phone it breaks through the password it recreates the digital data available here this is a case that's different from sparks upon which the district court did did reliance and its analysis is largely based upon sparks which  correspondent this court found in two thousand and fifteen that the cell phone had been abandoned there of course the fact that the cell phone was not password protected was a fact when heavily in favor of its decision to find that the cell phone had been and in fact this court mentioned that there the defendants had decided to abandon the phone and its contents making the conscious choice to allow a stranger to keep their phone quote without so much as a password to protect the phone contents and so in the fact intensive analysis of sparks as a band is a fact intensive analysis the lack of password factored into it that's why upon argues that purpose is not controlling of the question presented here what do we do applied the analysis of reilly that digital contents of a phone are different from any physical property and a different context so we already know that it is not true as regards says that if reilly only holds to search incidental lawful arrest i mean carpenter and a different area fourth amendment law the supreme court again said that the privacy concerns of digital data and cell phone are so profound that the traditional doctrine if their party technically giving it to the wireless carrier carriers risin or whatever your carrier is and that's the technically third party the supreme court held after very garra that in that case two it's not a place about to say that that breaks the privacy  abandonment is different from the border exception abandonment addresses privacy exists at all whether this whether mr garrett or is can claim a privacy interest as a threshold issue in the password protected encrypted data of his cell phone vergara talks about border searches which is an exception to the warrant a crime or a crime and so it's in a different context there's already a private interest fashion that i could evidence because i believe that here it would not be following the precedent ithout removing the password in your view is there any way a person can abandon password protected information i think that a person could have  banned not in the traditional sense i think that you would only be able to nontraditional censors there only by giving it to law enforcement for help or for circumvent in consensual whatever he does with the phone there is no way he can abandon password protect i don't believe you can abandon the password protection digital content i believe that law enforcement should be required to get a warrant to do a digital stars should should be required is different from are required because it hasn't been abandoned so and he has an abandon the password protected information in it so i know i don't believe that he has said carnes i believe that to your prior question one of the things that the record did state is that the person who found his phone knew of people who could reset phones to factory settings so i do believe that to answer your question if you abandon your password protected phone in any manner if you lose it or you abandon it you have not abandon the privacy interest in your password protected content i believe society would accept as reasonable that someone who found the phone could scrub it back to factory contents and begin to use it as their own but people who can do that scrub it back to its factory settings like the i tunes store or something that i phone store that's not getting into the password protected data so i don't to that says anderson first the district court twice explicitly limited the arguments and evidence to standing in this case i thing before we even get into the significant end of the hearing the first thing the court has to do is establish that you have standing coun limit when it was first brought up during the hearing which was in your closing argument after all the evidence made the is that you have standing to even bring the issues before a court that doesn't seem to me to limit it it just says we'll do this for us and then at the end of the hearing after they have announced you were closing exigent circumstances are split second decisions how the officers here simply scroll through the most recent calls and attacks to look for to is part of their search in an emergency situation we wouldn't be here today instead with much anticipation a between fourteen and sixteen hours in their possession and they turned it over to an expert forensic detective who engaged in the type of technological search that takes itself several hours this is not the situation in which the accident circumstances would have precluded the getting of a warrant indeed they warrant for the g p s data of this phone in order to find the phone well that was before they found the phone right and once they found the phone they found him and calls proximity so the detectives concentrated it was over not wasn't like they found the phone in him at eight am in the morning and the david there with it overnight they interviewed him in trying to find out where the little girl was that was the focus of their activity and lead detective in the other detectives came in and order to develop the facts the exigent circumstances is worn exception that's very fact intensive and so i'd ask this court to do is do you have any case where the offices were as busy as these offices were i mean they find and arrest the defendant who was trying to flee do you have any case it says that just because they could have gotten a warrant obviously the same time while they were driving home  such case i don't have a case as i understand that with a situation very parallel to this but i do think that all the leading cases on the fourth amendment do a balancing act between the fact that it's you and here the nature of the search they knew they were going to conduct should inform analysis and i think the type of search for which they had time to get a warrant for which a warrant would not have precluded the search in any way and i think that that typically the exception for exiting circumstances should be applied where  application for work would have precluded us let me ask you this didn't he to race the images on the phone to the extent one can a race anything from a cell phone yes so all right if he did that and he did that when you knew the police were coming to interview him and before he threw the phone away why did he do that if he subjective really believed that the password protected information would not data from his phone prior to abandon the head only shows that he certainly believed that it was subject to privacy the things we delete from our digital history we certainly don't expect to be discovered by others so i think it only reinforces his own s that to me it shows that he was from was he believed he was removing it from his phone come and so to allow warrantless search that could recreate deleted files which is what this search can do right so the password is not necessary if somebody deletes the pictures on their phone and the officers look at the phone and recreate the deleted images no password involved that still volage that fo i'd like to start by just a couple of the arguments against taurus raised first with respect to the subject of expectation of privacy the district court made the finding trying to defend its pascoe protective position his argument contravene password protect the privacy of his own and that is a finding that this court be for clear error and there's nothing on this record that would show that that was a year error with respect to the argument that this celebrate technology concerts a deep dive into the phone that's never been the standard the court has recognized that when you put something out into the world that people can come across the meal or failure of your mere failure to anticipate that the police would be able to use put technological ingenuity to get into to break a password is not the standard for the band and the standard for abandonment is do you have the objective intent to discard of leave behind this item and here he clearly did there is nothing in the record the suggest that he ever had any intent to go back and reclaim the content of his cell phone when he abandoned his cellphone he abandoned both the cell phone and the contents of it and with respect to carpenter and carpenter having some sort of impact on riley again in carbon or the court expressly limited its holding to several more days of so historic cell site location information it wasn't talking about cell phones in general it was talking about cell site location information being turned over to third parties and again the basis of the court's decision in carpenter is that when you have a reason expectation of privacy generally in your information and when you share it that diminishes your expectation of privacy but when you balance it against the amount of private information in your historic cell site location that is an unreasonable search and of the fourth amendment but when you have abandonment you don't get to the question of whether the search was reasonable because the fourth amendment to counsel's next point where she says that a password protected cellphone can never be abandoned regardless of the source what would have happened if you know tourist when he was interviewed they had said is this your cell phone and he said no it's not my cell phone under this person theory that would still not be abandoned because she didn't she didn't say well the sub contents of my cell phone are not mine this court has never separated the contents of  dish his cell phone he told the office he then fled he told the officers that he threw it away because it was garbage he knew that a third party had his phone and he made no efforts to  throw something away they can no longer you can no longer you know it seems to me like you're not really meeting the strongest argument on the other side which is sure he abandoned the cell phone but he didn't abandon the information and his privacy interests and the information protected by the pa recognized that there is that briefcase can contain very private and from that doesn't matter they can still be abandon but you agree with me that the supreme court went to great lengths in raleigh to distinguish know never before have people carried all of their personal information with them on their person and for that reason cell phones are are different than a briefcase you would you agree with me throw the cellphone away and that's what distinguishes abandonment which is a doctrine that says that the fourth amendment doesn't even up high from a search engine to an arrest in which the fourth amendment still pies it's just that the search circumvent the password and get the gun do you even more house testified that it was his that he had a friend who could hack into a phone break the pass code and that it didn't delete any of the information beyond the password without deleting the information beyond the password he didn't say that he thought the police wouldn't be able to access and no he didn't say that they won't be able to d him all right i'm a little unclear why does that not indicate a subjective belief that the officers could access the password protected and i think it does then i don't understand your first room before will but she entered the order and i know that line of precedent you talking about now always thought it was a little bit odd but i guess you can consider it to support any previous orders that have been entered but not to undermine any previous orders because if the defendant didn't present it and had access to you don't want to give him a free shot at the trial and then you put in the information if you didn't get it but that that's another be searched without a warrant cell phones can be searched without a warrant locked briefcases can be searched without a warrant to say that the police from that could not rely on that precedent to say that they could search this clearly abandon cell phone this wasn't a case of police misconduct or trying to skirt the warm requirement this was merely them relying on the precedent and if this court were as courts recognize it there are humans are basically foreclosed if there are so many davis all right thank you cannot just turn to the exigent circumstances how many hours did it take for them to search the phone after they had it in their possession  it had the phone their possession for sixteen hours but this was a rapidly evolving situation and if you'll recall the reason they were originally searching for the cell phone was not to look for evidence of the crime on the cell phone but to locate the key suspect in her disappearance they locate they got the dogs or got the phone and then he mediately went with task force officer to apprehend the suspect and interview him which is this doesn't that argue against such an circumstances existence it's when he comes out of the wood when guarantors comes out the woods without the child now there's a child that's potentially abandoned in the woods and i would also say that it was an evolving case of probable cause while the you know well that there was per arguably probable cause to search the phone from the minute that they got it at that point it wasn't as clear as when they interviewed him and he said gave this story to the district court later didn't believe it w facially incredible about how he was walking in the rain in the phone got wet and he threw it away even of the phone call how many hours passed after that story after that story four hours in is there anything in the evidence about this search of the the password protected information is that it could only be done in lee county and there wasn't anybody in fort myers or who could have done it to anything in the record about that o statement that he's not surprised that the officers got the photographs beyond the password because police always get what they want off the so far words to that effect and disputed that he made that statement and the transcript is ok given that why does why does he made the subjective belief component of privacy didn't say it but was very that he he's not surprised that the police got it yeah that wasn't he didn't say that after the verdict i thought he said that during the interview by the detectives and it came in during the i'm wrong about that why would they be admitting the interview transcript after he'd been found guilty the same with me which would seem to be the logical progression of things that the interview transcript came in in trial and i believe your sister over here is correct that we've held that evidence that comes out during the trial can be considered motion to suppress ruling specifically that can be considered let's assume and he said in that transcript of the interview that he had with the officers it doesn't surprise me they got that information you can't be a lead case unless your name is johnson it's absolutely true he's next up is us versus sp