government's ever shifting theory in this case is simply a ploy to distract this court from the fact that agent simon specifically sought authorization for the contested search in this case but did not receive it the supreme court stated that just because a magistrate judge has issued a warrant does not necessarily establish that that magistrate judge agreed the scope of the search should be as broad as the fire requested as such law enforcement has a duty to read the warrant they can find the execution of that war to what is actually set forth in the warrant in this case there is no disputing that agent simon wanted to search any set any cell phones found on the premises what about the for a phrase digital media that's in the war digital media that is correct your honor and is wouldn't in the abstract with that cover a cell phone a cell phone does contain digital media on it but agent simon specifically asked for to search any individuals who may have mobile computing devices concealed on their person and any computer or digital media located there on on that person as the government concedes in page six of the reply brief this language was specifically included because agent simon wanted to search cell phones he did not receive it the computer any computers or digital media was confined to computers that and then it heads it had media yes they had digital media that actually includes a poem i think so what's the what's the real what's the real send here by the agent application i see and the magistrate judge did not approve this this was so but doesn't have so this is a good point right here they ask for something a little more specifically the magistrate says no although you have to acknowledge no explanation but why isn't that perhaps question begging right i mean it's possible the magistrate said no because he thought what i've already allowed covers that isn't that possible grover your mirrors says that law enforcement must assume that that when a scope limitation is placed on a warrant that that they don't get to question the reasoning behind that now it is true it does cell phone does contain digital media but cell phones are located on individuals and not in the residence and the government's new theory is they are simply asking this court to read the war in a way that raises serious over bret issues how they raise this issue at the lower level and ask a question if they found the cell phone in the house could they have searched in this case not a person why not so in this case no because agent simon specifically saw he separated computers local let me ask you this if if i say i want to search for drugs in that house courts routinely say you can look at any where you can find drugs right you can look in every nook and cranny now is judge cook just pointed out when you're asking to look for pornography and things like that it's almost always on the cell phones or computers so i don't understand why if a cell phones not sitting on a table and you say i want to look wherever i can find in this house for pornography the fact that something that he asked for doesn't make it and ultimately end of the warrant is of consequence is that as judge sutton just pointed out if we don't know why he turned  videos of child pornography on it and this was a shared residence nd this court stated in united v state richard the analyst and allegedly analyzing computer searches to other physical objects when applying the th amendment law is not an exact fit and it was searches involving computers it's ultimately looked out on a case by case facts specific at a minimum doesn't the difficulty of this problem suggest that leon would apply so i agree yes if leon applied the result is that it should still be suppressed in the united states v leon footnote twenty two dollars the court said all circumstances must be considered and the objective objective all reasonable analysis which means the fact that agent simon included language that would specifically arthur eyes i'm to search cell phones that's the bad the bad faith is seeking it having it tonight and then still doing it exactly the supreme that's good only if the thing that was allowed clearly prohibits it otherwise we're back to maybe that's why the magistrate deny the nd request he didn't need it it would destroy just common sense of think that magistrate judge would would limit the scope of a is the magistrate might have denied the nd request because the st one was broad enough it would cover cell phones anyway c digital media or c you can search the house any for any visual depictions of minors and gauge and sexually explicit conduct so that pornography on it that law enforcement one that the magistrate judge one of the limit the scope to just computers and didn't think it was reasonable for law enforcement be able to seize any individual cell phone who was like located at the residence it makes sense all right we'll hear from your classmate slash the sheer breadth of the indecent liberties statute in north carolina renders it too broad to serve as the predicate offense justifying mr parrish's mandatory sentence the broad statutory language has only been made broader by interpretations of the north carolina supreme court or north carolina courts mr parrish's sentence must be vacated in a manner for two reasons st under this court's holding in united states st mateen because the north carolina indecent liberties fence does not require either physical contact or an abusive effect on the victim it cannot be sexual abuse to because the north carolina indecent liberties offense as construed by the by the north carolina courts does not necessarily involve a minor victim it cannot be abus sexual conduct involving a minor now i would just like to begin with the sheer scope of the indecent liberties offense courts have been very clear in north carolina that the statute was meant to go broader than the prior laws had provided it was meant to cover conduct in here that may not be inherently abusive for instance in terms of the court said that when when deciding whether physical contact is required by the statute the court said no physical ss so that quote the grab a man of the defense is the defenders is the defendant mens rea are not and the particular act performed by the defendant is quote immaterial so you i thought you said at the beginning you were going to say that north  carolina statute isn't limited to minors it's so that it wears what's your authority for that and is that supreme court where you coming from on that one in state north carolina court of appeals had so the fact pattern was the defendant was interacting with a police officer posing as a minor online and even though there was no actual minor involved the courts of that's sufficient for for the indecent liberties conviction so the and underlying that reasoning was again the citations to decisions like stevie hartness federal statute says relates to abuse of sexual conduct conduct involving a minor and you could say and attempt to do something with a minor and that would seem to be an attempt that i thought it was a minor sure well the categorical approach still compares what's what's required under under each whether under both a generic statute and this the state offense if it's if it's an offense that may render it divisible in which case the court would have to look at the shepherd documents we don't have any shepherd documents in the record so it's it's hard to tell at this stage exactly what the elements were we do have a p s r but of course that's not what seems hardest about this argument is the relates to language well this court in the united states st mcgrath and address that argument and explicitly rejected it said that quote the underlying concern in the protection of the  protection of the jury trial right this is in talking about the categorical approach and why courts use it so the categorical approach protects the defense jury trial right under the th and th amendment and quote the difference in the statutory language whether that's including relating to or not relating to or not including relating to and section two thousand two hundred and fifty two dollars a b one is quote immaterial in the constitutional context that's from united states  but because this court has already a directed address that argument that this court is it is bound by by that reasoning in in united states for some regret now because because even applying the categorical pro choice if a minor victim may not always be involved in the offense it cannot serve as the predicate for example in the st because this court's st panel decision in the united states versus mateen the question is whether the state the ohio state offense qualified in sexual abuse of a minor of course the question changed in the later panel decision once this court heard the heard the case on but in the st the st panel had to decide whether the ohio statute required the involvement of a minor because the court held that it did not involve a minor and in every case the court said that it could not qualify as sexual abuse of minors and that that reasoning is instructive here it's the same question except applied to the abuse of sexual conduct instead of the sexual abuse component  now finally in closing if this this court has not previously defined abuse of sexual conduct involving a minor but we ask that this court at least give effect to the word abusive because if congress wanted to include all sexual may please the court become koehler and a half of the united states this from the district court on all three issues on appeal here suppression of the images in videos taken from defendant cell phone is not warranted defendant's prior conviction for taking is not properties or any sense of why the magistrate didn't authorize search of persons there it is not your honor in with respect to that thing it's relevant to the district court found that there was no evidence in the record that the magistrate intended to limit the scope of the search warrant i isn't that evidence that he intended to limit the scope of what is that that they ask for any said basically no by not including it mean to limit the breath of the scope and then the other point think of just what you mean by that you're saying because he signed these exhibits attachments that proves he made a mistake he really did mean to authorize search of persons what's the point you're making the point i'm making there is that one piece of evidence that would it were looking to see if the magistrate intended when he signs the affidavit for example he's just saying that it was sworn to in chronic pain he's not swearing to the contents or authoriz he's using that to make it probable cause determination that's correct your honor so why does that have any bearing on what has a bearing probably more relevantly on the good faith portion because in the good faith analysis we look at what a reasonable while i mean i have a little bit of heartache with the idea that he specifically didn't include it and then the officers did it and on the last relevant to that point is that the war itself did include computers the warrant affidavit to find computers in a broad sense using a statutory definition that's been held to incorporate cell phones so i think we're we're back left of some ambiguity about whether or not the  e intended to limit the scope of the warrant or whether he thought that computers as a broad commonsense definition would i mean this on the context of seeking a search of persons not getting it then when you think of computers you're like you people don't really have computers in their pocket like regular frame computers and so that suggests the computer language is not really applying to cell phones which very much are persons  the good faith argument it's whether it can still be objectively reasonable now can i ask your a related question to my drug analogy which is if the officer see to get drugs from the house and the three persons and their bodies and all that's included is that house does that mean they can search the person's inside so the same scenario except just change it in this situation it would your honor because you're dealing with a small confined space  you're dealing with individual you could search their pockets and their body you could your honor and that's what the th circuit explicitly found in cohen although that was a case where they searched found keys and seized the keys we think rom also be on point here because what you're doing with again it's a small confined space limited number of people people who are known to law enforcement people who are actually named in the affidavit and with respect to mr parrish people who the agen even the magistrates doesn't include it you would be allowed to do it if the majesty if it was very clear on the face and there was evidence that record indicates it's clear you ask for persons just like you did here in the ma computer is lying out on the table if someone takes a computer and puts in their pants or shoves it in their backpack that would still be permitted to be searched why shouldn't we just as a matter of practicality place the burden on the officers to if they don't get what they want to clarify it with the magistrate it forces them to read it it forces them to digest what they've got it takes just a couple minutes and then they can go and ask for clarification eleven of them could have called the magistrate made a lot of jeopardy i think under leon kind of addresses that situation so that if if there wasn't an objective good faith reason to believe that the warrant covered the search of the computers then we certainly would require the agents to go and seek that clerical i guess i agree it could go ahead i wondered if the council's point about defense counsel making the point that the house being occupied by three individuals might explain the denial in the warrant of the cell phone aspect i mean what's the what's the government think about that you know that would that's a possible explanation for the saying no no not cell phones because that we don't know we we think it's on a computer occurred with respect to the warrant in being told no that's that's what i'm wondering makes a good point about the mall a resident situation there that that was him what that was part of this thinking it was a situation but you're still dealing with a limited number of people a small and confined space child pornography is easily transferable from one device to  another and then under the good faith analysis it's based on what the objective officer might reasonably believe and whether he reason to believe that the search warrant incorporated cell phones as a species of computers and whether or not  here the district court conducted a totality of the circumstances factual analysis which this court refused for clear air found that there was no physical force found that defendant voluntarily agreed to be interviewed we followed agent saxton into the into the trailer probably most relevant only the district court found that there was no credible evidence that the defendant was ever told that he had to surrender the phone pursuant to a warrant he also cooperated on locking the  cell phone evolve he was told they had a warrant right now and he could have assumed it was for the cell phone he could be cut of your honor and he testified that he did  but there was no evidence that he was ever told that it was for the cell phone but they didn't specifically ask her consent right they asked for the phone ask them to change the past code did they ask her consent specifically there's no indication th warrant they ever record that they ever use a specific term consent obviously various courts when this right on that consent can be indicated through verbal and nonverbal so simply in response to a question can i have your cell phone turning it for the phone after they had read him his miranda rights and he testified that he was aware of his miranda rights at the time which again is another another factor goes into their what role does a bumper versus north carolina have to place it have any role a there is there something bumper independently does terms of limiting consent rulings bumper i think we're not arguing the bumper is no longer a good law bumper comes into play if there is evidence that a search was held out to be or the officers represented or claim to lawful authority to search the device so if the officers came in and said we have a search warrant to search that device hand over your phone cases which have said the mere presence of a warrant doesn't doesn't trigger bumper on my ass there's some claim to authority but just as the absence of the word consent isn't dispositive is the absence of the actual words in bumper not  e in other words it can all be what you see in the number of officers here in this close container it's a i would agree with that it's a very fact specific inquiry and that's exactly what the district court look here so if there is if if the facts indicate that there was a claim to authority to search that specific device then that should be take into account as part of the totality of the circumstances here the district court judge m argument that the defendant asserted below and he specifically discredited the defendant's testimony that he was patted down that an agent picked a cell phone out of his pocket and said this is covered by the warrant and then put it back in his pocket and that judge marley simply said that's not credible remove that from the analysis and the top two other circumstances indicated consent statute fourteen to two point one relates to both sexual abuse and abuse of sexual conduct involving a minor consistent formulation that many circuits have applied to here is that it includes physical or nonphysical misuse  mouth treatment with a minor for a purpose associated with sexual gratification the north carolina statute fits within this pretty easily to the court to the extent the court looks to mateen to identify what counts as is relevant here is the relating to language that's still good law and i believe in this circuit and other circuits the relating to indicates that it should be read broadly so that even if it's an attempt and you're dealing with an undercover officer that still is a crime that relates to the abuse of sexual conduct involving a minor and relates to sexual abuse which involving a minor doesn't doesn't apply to the they please the court during the government's presentation you asked why isn't the burden on the law enforcement officer to ensure that everything that was requested was authorized this court room here is the supreme court did put the burden on the enforcement and this court and in united states v rare rick stated this burden is even greater when the officer executing the warrant prepares the affidavit in support of the warrant draft for applies for the warrant that was agent simon in this case despite the scope limitation he testified it was his duty to search any individual found on the premises for digital media this is an overly broad warrant ultimately the th amendment requires testified that it was his duty to search everything and anything when you say he's testified yet during the suppression hearing suppression that's why i thought ok so what's the point of what's so what's so leon it's a case by case facts specific inquiry the disco going to take action on the warrant made it reasonable law enforcement knew a computer we don't know what if we're just not sure why he turned it down well as the sure why wouldn't good faith be appropriate because this is not when we have to infer bad faith in this circumstance based on that what you're asking us to do there's no firman of finding a bad way obviously worse what i'm asking is law enforcement how to duty to actually read the warrant and limit the scope of their search to what the warrant put forward there was a scope limitation and this case agent simon did not do that that is agent magistrate judge did not make this air therefore good faith does not apply is not objective lee reasonable for a law enforcement officer to ask permission to search a and b only receive a search a b anyways and on to the consent issue it is true the lower district court did not apply bumper v north carolina because they said in that case the law enforcement didn't have a warrant as a book foreign or brief that is not true ultimately mr sorry mr parrish did not hand over his cellphone voluntarily he did it because thirteen federal agents seize control of his house pursuant to federal authority and a man with a gun a badge and a search warrant asked him to hand over his phone because in conclusion because agent simon did not appraise him self of the scope of the warrant the exclusionary rule retains its deterrence value and the evidence must be suppressed thank you all right thank you to all three of you for your helpful arguments and briefs thank you mr slyness for bringing so your students mr andreessen mr owen nice job i mean if you can master