well here the the next case on the calendar united states versus kirkland s raises two challenges to the judgment one concerns the suppression of suppression motion and the second concerns the two hundred twelve month sentence i'd like to focus this morning on the suppression related issues and start with the probable cause issue as i see it this is a case where when officers apply for a warrant based on the their claimed viewing of an image do the officers have to submit the image with the application for the war and if if not what level of detail must say include a bell which is our position obviously that this should have submitted the image itself because when we're dealing with lewd or lascivious images it's often a subjective judgement about whether the image depicts meets the legal standard  for i'm not sure what your special require would which category of cases you've applied just to pornography cases or sex cases or children cases or what crimes you apply them to don't we also don't we simply have the problem that at this good faith but included in that is as you as you point out the obligation so the other circuits the first man of the first this issue seem to sort of come up in the late ninety's and early two thousand and the first robust description of the images that would allow the magistrate to make his or her own independent evaluation not just rely on the claims of the officers the third circuit followed that the ninth circuit eventually did as well this circuit is an obligation we're going to apply good faith because the law is not settled in this area i would submit that when other circuits and preparing for obligation and i think that that's right you aren't you actually saying that there is no established law in this circuit but i'm saying you can tell in the second circuit i don't know about new york courts court until it was me i would like to at work is being done whether there's an emergency how many days is reasonable or not reasonable could you speak to that that issue well i think courts of rightly issued a sort of bright line sort of number of days  analysis but i think that it's a balancing test you know the police's interest versus the defenders interest and i think that as long as the police can come forward with explanations that occup time in question is of thirty one days in this case of that that investigator kirby can come forward and say on each of those thirty one days he was doing x y and z that occupied his time and a reasonable way and that had prevented him from going forward with actually submitting or drafting in this case i don't know that he did a lot but submitting the application then that would be reasonable but he didn't do that i mean he gave general my you know my area big i have lots of cases and the socket took a couple days to give me the police reports what when in that thirty one days that the police reports were given or ask you requested it is not in the record so basically position is that the explanation does not sort of fill the thirty of the the delay and therefore there needs to be a day by day justification i mean yeah i mean a similar sort of your journal of what you did each day but you know is essentially an explanation that reasonably fills the time this didn't do that it's just his explanations are not specific to this case i mean except for the police reports but those take two days and they don't say when in that thirty one day period the two days occurred and in fact nothing resulted from that they really knew there he had the information and they you know they didn't get it right either and they overstated his history looking to other factors i take it as well i'm sorry in terms of the delay in the reason most of the delay is outlined by other circuits especially in clued in this circuit in unpublished decision in the house case how case other factors like  what the defendant's interests i've pointed to the police officers you know their interest so in this you know we look at whether it deprives them of the body interest or if they have a you know what sort of claim they have to the property police versus defendant obviously this is not a luggage situation we're not depriving kirkland smith of his ability to get on a plane to you know but nevertheless we are depriving him of his mobility in the modern era to to access information through his tablet and his i phone fact that they secured both of those and the police say that they saw an image and which sort of the best factor that they have right that they reasonable or as they say and the depiction actually was as they say and that's in the brief and to sort of flesh that out here but there were questions all preserve delay if there are no if there were no emergency or other outlier circumstances how do we think about how long the police can keep someone's cell phone and tablet assuming they were illegally seized in the first place obviously the length of the delay is going to be a significant factor the cases that we've cited in the brief deal with delays that are significantly longer in many cases than the thirty one days here but obviously we want the police to act with due diligence we don't anything on the record as to why the investigator kirby was so busy with his his caseload that he couldn't have applied for a warrant sooner than thirty one days you know he says he had fifteen to twenty cases is that a lot how do we how do we assess that  well i mean the district court assessed that it was in part the number of cases in part of the nature of the geography where this particular investigator  worked and travel time and those factors and the district court made a finding that it was the the presence of these other duties for this officer that resulted in the delay in large part so and i don't think that's what he says doesn't the and correct me if i'm if i'm wrong that there wasn't any emergency causing him to be away from work for several  months whereas he was proceeding under normal circumstances by keeping the case and applying for the warrant when he did doesn't that seem to suggest that there was there was no extraordinary justification for the lay  no extraordinary justification in the sense of some emergency i agree with you the record does not establish any emergency but the district court determined that the nature of the business was such that it was responsible for at least in part some of this to lay and i think that's a factor that the court has to consider obviously but what are the nature of the crime here this is possibly evidence here that this officer trooper has a sexual predation on a child right and and a person who's at large well so it's hard to imagine what would more important in terms of the officers other duties far flung geographically as they might be and trying to get to the bottom of this well i've seen cases that have been brought to this court from my district where there were circumstances of actual abuse going on which resulted in problems with warrants and the like which ultimately the court excuse because of the fast pace of what was occurring i don't think that's what was occurring here your honor there's nothing in the record to suggest that this was anything other than an image of past abuse not that there was reason to believe that this defendant or another he couldn't help that i mean he sees on the i phone or the whatever that the tablet that he gets he sees an active abuse that apparently this person has actually been looking at in the car and then  he's back home and mr smith that large that shouldn't we turn to looking at recent moments look at what's the severity of the crime at issue not simply in terms of whether there's  officer had other cases on his docket yes and i don't mean to diminish the severity of the crime here but i don't believe there was an exit in c presented by the information known to the officer serious but nothing that suggested ongoing abuse now i can't quibble with you that an officer should have that thought about whether there might be ongoing abuse but there's nothing here to suggest that that was the case the officers different officers than the one who saw the image were at the defendant's residence i believe the following day to give them the traffic citations and asked for consent to look at these electronic devices so i don't know if because cops think like cops they were also looking around for you know the kinds court has already addressed there's a diminished possessory interest in the devices at least one of them the officer observe the image in question that diminished possessory interest is also reinforced by the fact that the defendant made no claim or inquiry about when or if he would get the device back we did not or the seizure did not interfere with any liberty interest of the defendant so looking at all the factors while this officer may or possibly should have acted sooner and we only know what we know from the record and i understand the court's concern about delay again that period of delay is not as lengthy as many others and the other factors seem to weigh strongly in favor of the government so looking at the picture as a whole i would say that this set of circumstances does not warrant suppression of the evidence i've had that and i'm really good at this to a footnote in my brief below with respect to whether or not there was probable cause for the search warrant the original search warrant and i think all the other search warrants either line up or fall based on the first the officer obviously didn't  address honeys the civic factors like the doest the description of the images bear but even looking at the dos factors the first one that's listed is whether the focus of the image is the genitalia of the minor and here the way the officer described the image suggest that was the focus of the image in any event  but what about the failure to preserve the sleep settings well as in that negligent it might be negligent but that's not legally sufficient i would not say that's negligent i'm saying that even if it was exculpatory nature of the information evidence that wasn't preserved has to have been apparent at the time it was not preserved neither of those factors is present here i think knowledge that it's problematic from the defense perspective in the circumstances that we have here is it really is it i'm trying to understand in terms of just the routine practices in the in the district is it really the case that really no no effort is made to ensure that settings are preserved i'm not aware of what practices might be followed by other agencies but w know about the state police practices are what was testified to here and i will tell the court and i'm certainly no expert in these kinds of cases this is the first time i've seen a case where those settings were an issue so it 's not as if it's a recurring issue that the police were ignoring but that does appear i don't i can't say whether that remains their practice but it certainly was at the time not to preserve those issues settings is that the state of the record that the defendant said he had set sleep settings and that the winner was was examining didn't look to see whether there were sleep settings or just well it wasn't the defendant didn't make a claim about what sleep settings had been set at or near the time of the seizure it was in support of the or to suppress the evidence that that claim was made i'm not sure how clear the record is i know from speaking to the trial attorney that there were efforts made to try and reconstruct what the settings were which was not possible clear that there were sleep settings set that's correct there's no there's no way to by virtue of the way that the state police conducted their examination there's no way to saw the screen and when it had been viewed by itself far as our record tells us and when it had been before the officer got there i guess i should say so time time and he was dealing with with with mr smith in the first place i mean from the time of the officers arrival on the scene right i can't tell you exactly appears to be a couple of minutes the officer said he observed mr smith hunched over the wheel the officer went to the passenger side for a couple of minutes i believe is stated in the record couldn't wake him up went to the driver side welcome up mr smith  lock the door and the officer went back at that time he only put the car in drive and park and turn the key off had you taken mr smith out of the car as well october thirtieth officers went to kirkland smith the next day to issue the tickets asked for his consent he said no get a warrant they apply for a warrant on december first i believe and then they search it and he doesn't have a lawyer at that point he hasn't been charged federally or in state court with any crime that would you know get him on a lawyer he didn't retain one so he didn't seek specific the record is that kirby was asked did you smith asked for the return of the tablet kirby said no but there were other officers there and they didn't testify kurgan smith never affirmed the words asked the question that would indicate that he demanded a return though there's no indication that he would understand that he could because they asked for his consent he said get a warrant and we don't know what happened after that is that can i just address a few points that came up very serious as to the preservation of sleep setting and swipe setting you know they claim that that's never that's not that's not something that they would need to preserve but that doesn't ring true because in these types of cases not just whether pornography is on the computer it's who put it there and who knew that it was there and those are those are two questions you can really relate to was there a setting that required you know either a password or a swipe being where the tablet went to sleep so i think that that is actually there they were on notice that those were in every case and understand that i have a tablet i never knew that there was a connection between the sleep setting and identifying who it is that put something on the tablet well we're talking  about a person who was passed out drunk in a car we don't know who was there with him before the officer arrived at the scene we don't know how long he was on the side of the road so we don't know if somebody else was in the car could have access to tablet either that day or previously left it that this would create an accident scene or at least reason to move quickly he may well he doesn't say that nichols doesn't say that originally he just says bald female and then and then he says female he never says child he