we do not have video yet there we go mr bryant mr stewart arrival here from you st thank you just good afternoon everyone this case is about a d n r officers key and smith i was a part of natural resource officers who had essentially a vendetta against friend went in every single one of them was dismissed he was not found guilty on any of them just three or took this nike three case and dismissed part of it on as a motion to dismiss and then dismissed the rest of it on summary judgment the case had a lot broader focus at the time of trial and we recognize that the district court is in large part and part of the case we recognize the validity of the rule so we focus our appeal on six particular issues three substantive in three procedural the procedural issues involved dismissal of our unreasonable seizure claim and the i will constitution for the failure to even a standard that had been announced and to my knowledge not even today specifically announced about how i knew what courts would interpret a seizure standard would you think that there were some reason to believe based on some of the decisions of the hour or that they would issue and so i didn't address that either of the defendants didn't didn't argue under the state constitution and make that and make that claim and so i didn't either but they moved to dismiss the cow they did move to dismiss the count but then they don't argument mendenhall factor now while that's an argument that's an argument that you should apply to federal standard it seems to me you could have argued no it's the rock standard well i don't think at the pleading stage i have to do that and see it rule any day and it always everything under the sun for readers on facebook for a claim that there was one does one thing violation on one particular day they went back two years prior to the date of the time the subpoena put out claim we argued that it lacks probable cause for the acting on your paragraph to look at i can find it for you but i know we argued that lack of probable cause and that just because it's frankly including private i'm trying to see if i even have an in the appendix like a good person because i had somebody else read it more carefully that means skimming it growing up i believe we specifically alleged that it lacks probable cause to judge that gets to our overall point i mean any quantity that a warrant last probable cause could be could be structured as an overbroad claim even if they go to the wrong house or they get the one for the wrong house for a search you can argue this over right because there was no probable cause to search the house that they actually didn't search so i just don't think we play word games we should play word games and deciding whether pleading deeds is a  california and how people nowadays carry all this information on their phones and that's part of what they were talking about in the writing case this is what people do with their cell phones you see americans i'm sitting there on their cell phones and they're they're texting but they're also posting things on facebook they're taking pictures to posting on facebook they're everything that they do you know for certain people ends up on the phone or on their facebook pages that's what they post all about it to have a no good shit on one particular day friended mr went and was able to get access to space when i met all three of the point of this case that their facebook settings are the highest level of security you can have been facebook which is friends only so in order for m do that we didn't argue that that alone was a violation but the certainly should have told the magistrate that we've been we've been monitoring this guy's facebook for the last couple of years and found nothing on there that supports any elevation i mean it's it's nonsense to say we want to get warrants and the information we've already provided doesn't support any of the claims we're making under the war so believe that that was a subset of the state that the court may law thirty five years ago and then also the case i want to talk about two things ruth late before i reserve some more time and that is this g p s tracker issue they put a tracker on my client been removed the courts look at that and then the defendant came up with one calling an alibi warrant another case where are they claiming this is what he was referring to the problem with that is he admitted in his deposition that he didn't have anything to do with that alibi warrant if you look at it it says exactly the opposite of what the court up it says nothing about removal of the tracking device it says on it and if this threat is sworn in the next day the day after he tells  about the whereabouts of whence a vehicle in the couple hours before the text message we didn't put any evidence in on your honor they have to have a warrant to place a g p s tracker there no i understand that up wondering what evidence you're asking for any in that the text message referred to an act by smith went vehicle and i'm just wondering if there's any other evidence that would corroborate your theory that smith went to wince a vehicle during that hour to is it just the fact of the message coming up the date of the charges and what the message said no it's the fact that it's that fact plus the fact that we had discover to get records of the truckers from the law enforcement agency and no we were not just of them the alibi i'll warrant was presented later on in the discovery process and we took one look at it and realize it didn't say what they wanted to say and we thought that we were in good shape to at least get over summary judgment on that basis of that says nothing about placing a tractor speech me removing a tractor that  illegally hunting on his and his neighbor's property and trespassing on their property an officer snit's responded to that complaint and its officers this stated in his deposition since he's been a d n r conservation officer in cass county quote the single the very way you would expect officers investigating a crime to try to piece the act together in determine appropriate course of action that the clues recognize qualified immunity is available to officers when acting reasonably under the circumstances even if they make mistakes it is well established that all side immunity protects all but the plainly incompetent or those who knowingly violate the law just recently the i was supreme court recognized  qualified immunity under the iowa constitution for officers who quote actually cited all the care to conform to the requirements of the law and quote the district court found the plaintiffs one  meet their burden to prove constitutional violations in even if they did two officers seen smith acted reasonably during the investigation and they were entitled to qualified immunity under both state and federal  removed the key word here is what was in the record mr o'brien talked a lot about information that was not in the record is what was in the record they were to gather they work and they were working together on different things yes mr smith said that they were working together on the particular case that the search warrants was in that track or was used on but these are two colleagues obviously they're going to talk to each other about what's going on they work some of the same areas and even if they weren't working together on that specific case that doesn't mean this officer team had no knowledge of it or wasn't interested in it was that it was an f y i to him that the tracker had been removed in that other action thinking when it came to say when he was asked about this did he say he had knowledge of it i thought it was a little part of the i know you said he was involved in the case did he say he had issue i just remember him saying that he received it in that he was not working with officers on that particular case and i do not believe that that's part i remember that but i thought you were just telling us that they worked together and he is is to my knowledge absent as to the the reason why that specific text was sent yes your honor the real question then is have to speculate there's nothing in there that even hints that any of it refers to any of the plane and so when we either have to do to get evidence of a tracker on wednesday vehicle or you have to speculate this  that is what the district court found that it was not going to enter into speculation about what that text and then in that we did provide the warrant application and the return which the return the state that it constitutes a completion of the actions taken pursuant to this warrant and mr bryant that the tracker was on wednesday call all the way up until december th and that officer smith sat on the other of the other why what's the timeline the november december timeline because the the document say on the materials that i read that the tractor was placed on theories on the timeline that you just mentioned the november december i didn't follow that the application for the warrant was made in november and the magistrate judge issued the warrant to place a tracker on that vehicle in the other cas didn't act on the warrant all the way up until december th ok i understand thank you beef before placing it on the vehicle so that is it is our belief that other than on the st issue that the dismissal of the seizure claims under both state and federal law and the district court judge looked at i was supreme court justice apples concurrence and state whips and he gives a very big discussion that the iowa supreme court will apply that rule of law to state constitutional claims when the party do not argue differently and it's not a pleading requirement was about a briefing requirement if you just claim this d and you don't argue you should treat them differently the court will treat them the same and indeed the iowa supreme court in the past has applied the mendenhall factors proper for the district court to do that to apply those when dismissing that claim with regard to the district court granting qualified immunity to officers seen snow on the state constitutional unreasonable search claims the baldwin case in the i was supreme court answered a certified question from the northern district of ohio well the motion to dismiss was indeed we both briefs that issue  the district court asked for supplemental briefing in all the parties agreed that the baldwin case applied to the case that was pending before the district court and the iowa supreme court said qualified immunity would be available to officers who exercised all due care to comply with the law but it did not discuss what fasters should be considered when determining if that standard has been met so the district court look to the seven the court said the parties did not specifically breach the differences between these two standards and then he cited two berkeley versus gabrielle brothers for the proposition that if the parties have been given notice and have the opportunity to submit evidence in opposition then the clear can rules to a strong say on that issue in the court articulated that the parties knew about this difference in the standards we both drifted in the motion to dismiss the plaintiffs have the opportunity to read this defendant's motion for summary judgment arguing that there is a different standard that should be applied in the plaintiffs didn't so the court applying the well established law and i and actually  procedure fifty six asked says the same thing that a district court can grant summary judgment on suicide day when the party was given notice and had the opportunity to resist but here paula do i understand right that in your qualified that they were entitled to it under both state and federal law but at that time because the i was supreme court had not received any factors the only factors either party argued under were the federal and then the district court said you were wrong you should've you should have briefed the differences and we didn't do that so why would the district court apprised you it's in the passive voice so i don't know really what it means that this court says clearly that you were both surprised at the difference and i was qualified eight and he states the descendants of team search warrants for facebook records including private messages d without probable cause and without stating any actual basis what so ever the very st time that it was raised by the plaintiffs that it was overbroad for going back to two thousand and twelve within their resistance to the motion for summary judgment prior to that in the motion to dismiss and then there amended complaint it was because messages and they didn't state a factual basis is what the allegation was and what mr bryan failed to mention in his argument was that every application for the search warrant had a statement from victoria dual that stated in january of two thousand and thirteen she ses but photos and references that made her seeing that they were illegally hunting mr keene went to the county attorney in was advised to apply for a search we're going going back to december of two thousand and twelve he followed the county attorney's and what was in the magistrate judge found probable cause and he specifically referred to the victoria dual statement as that he relied on that partially for finding probable cause so the district court found that officer team reasonably believed that that warrant application was supported by probable cause and therefore he granted qualified immunity to thirteen i am almost out of time and the last issue was about the harassment and all i have to say about that is i agree completely with the district court that any harassing conduct was not in the investigation and then this was restricted to was this a fair investigation did they look at the evidence and the court said even if it was harassing it was outside the investigation and no fundamental right was involved for the reasons i've stated apple has requests the court from the district court d in all respects say mr stuart you mentioned earlier in response to judge ben that the coordinates entered an order saying the parties were apprised of the new standard state law did the parties then file supplemental brief supplying this standard in the motion to threw through it i will constitutional claims up to a sponsor a i reduced quite a state in front of the district judge and said you can't do that there's all these different changes here's this ball in case and ignore all that threw me out and good decision doesn't address that issue but it was preserved on appeal and so this case came up the defense didn't argue any different standard ave they didn't make any arguments whatsoever i reviewed case law that says you don't argue it all if you don't read it or argue it its way and i said i'm not going to get into it because they did and i still maintain that the finally the statement made by mister cain during his deposition was that he didn't have anything to do with the investigation of this other g p s tracker case so there's just no reason to text him about it and then finally don't forget and we follow due process claim here subsidy due process claim and after they lost the underlying criminal case