good morning again myra sun for seneca new and this is a fourth amendment case and it's like the house that eventually got searched here it has many entrances so i'm going to start with the entrance that began that's presented by my client's motions we know that he challenged the adequacy of the search warrant affidavit at this arctic address and it's number three that's in the front part of the house  the officers who went there that day had a warrant to search number five on the other side of the house another what we've u s self contained residence we think of this is like a multiplex or five plex just because you can search one person's part of that dwelling doesn't mean you can search someone else's so we agree with the magistrate's finding that the expectation of privacy in number three was distinct from member five we agree that this was a home there is an entrance hallway there is a kitchen and the officers actually went in past the kitchen to see what they saw so there are three categories of evidence in that warrant affidavit that we attack first is evidence from the g p s tracker and that would be the surveillance that they conduct when they went to the arctic address and went wherever it is they went in the front part of the house they seized him they seized his cell phone and they spoke to him without giving him miranda right in our view that was an arrest and then finally there's a smaller category of evidence obtained after he was arrested conversations with neighbors so let me start with the g p s a g p s warrant still has to have probable cause and it's just like any other fourth amendment location research there has to be a reason to believe that tracking someone's whereabouts in that vehicle is going to lead to evidence of contraband or in this case i think what they hoped for was the location of contraband which is to say that would get them to contra man and  so for that it seems to me there has to be a reasonable basis to believe that the person drives the vehicle and that he drives it for the purpose of storing drugs or transporting drugs in other words in our view the main thing that the officers were able to confirm once they heard from this it form and that my client own this car had a car like this was that it was registered to him but they are after they knew that all they did was go and see a residence where he was there and the car was there and i understand that probable cause isn't like being certain but in fact registration a car being registered to you and seeing you with it once doesn't mean that there's probable cause to believe that you're going to find contraband from tracking well mr didn't the informant also say i bought drugs from mr neil and he drives that car i bought drugs from mr neal he drives that car he didn't connect the two mr neil's a drug dealer right right that's the i mean you've got it seems to me you may have better probable cause arguments as to some of the other part of the search but that's the tracker and you have informant saying that's the guy who i bought drugs for and they went and they checked and behold the cars that is registered residence is registered to him i understand what more should they have done to it seems to me that  in the world people have families and there's a car and it's your wife's car and then there's a carnage to your car and it just doesn't seem to me that registration alone is enough to link you to the car i understand that mr str trafficking between him and this young woman yes but that was i think that was with the that was with the tracker i'm sorry i think that that was after the drug tracker your honor so the things that they learned from the surveillance i think that mainly what she did was let them look at her phone and they saw texts between the two of them that is the primary evidence i believe they got from the young woman you know three unit five and i don't know what she said in the affidavit for number five is not in this record it was sealed in the state court i can get it the address they don't have a search warrant to search that front part of the house where number three is with those two doors the red door in the white dorm once you go into the red door you're basically in what we regard as the house his house  and they didn't have a warrant to search that part of the house and the magistrate found that that was a self contained home and that they didn't have a warrant to search it and that their entry into that space to see him come out of number three or them standing right outside after they went in and got the lay of the land was illegal for some reason they did he did not believe that the subsequent seizure of my client was and the statements and cell phone they got from him should be suppressed it is of course our view that we should so on the g p s tracker we believe there is a probable cause and i understand that the court disagrees with that the evidence  gotten from there for a and to number three is the second category of evidence and this brings up that body recording which we did large and i think the government lodged and i just want to remind the court of the chronology briefly the original suppression motion was filed in august twenty fifth team that's docket number sixty six the government now says that this body recording was reportedly purportedly produced in september of two thousand and fifteen and that's their supplemental filings which we don't actually think show that the body recording itself was produced there are some disk label to put it they didn't show that that's what that disk was and then an october twenty fifteen there was a reply file does it mention getting a body recording the hearing was held in february twenty sixth seen and at that point the officer whose body recording it was didn't testify and the other one said i'm not sure there is a body recording if there is i haven't listened to it and then when the objections to the magistrate's ruling were filed at dock at one fifty four in june of two thousand and sixteen he said the counsel said i looked into getting this  recording and was told he does use the word informal i don't know what that means he doesn't explain it but he said his understanding is there is no record so i just want to be very clear that no matter what the government says the defense did not have this body recording we don't know that we don't know that ok the defense did not believe it had this body recording for use at the february twenty sixth team hearing and i think that that's well i can't imagine why that wouldn't be the case if you can if you would if you said really set in docket number one fifty four and the government doesn't seem to challenge the materiality of that according to the circumstances of the seizure and the evidence that was taken then because a lot of it is record of the statements and then the cell phone i ask you one thing we're going to talking in these big verbs government is saying there's a it's almost like a recess not to the fed ex your honor there is a sort of a receipt that i understand defense counsel signed to say yes i got this package and it's correct i mean in theory what you're supposed to do is look at it look at what you got and go oh wait a minute the says that's it there it's not in here all we have here is that it wasn't signed i don't think the government lodged a signed sort of acknowledgement of receipt from defense counsel as to that delivery and i'm sure mr struck he will correct me if i'm wrong and i'm sure the government will correct me if i'm wrong but i don't believe he acknowledged receipt of that you're saying counsel didn't get it or didn't acknowledge two the same investigators testifying earlier in the day and the government says and they and they confirmed that there's a recording and that that excerpt of record ninety five ninety six yes there's a recording  the government says we may come back to that later if we can put that together which i would argue suggests that it's sort of he just realized he had to and that's the end of the day that trial day he puts that witness investigator called back on the stand excerpt one fifty nine and that's when they play the statement and then the next day is when the defense brings in the rest of it so this goes to the government's claim that there is a waiver and before i go on i just want to say we have asked the court to remand and i'm i would ask the court to consider remanding for some for some sort of hearing about the production of this recording because i think that what happened here is that call said many things when he testified at the suppression hearing that aren't borne out by that recording and it seems to me the magistrate out uno that what he says happened isn't borne out by recording and i've i've included some authority that talks about how a court can consider what's a deuce to trial in ruling on a suppression motion and that can even do that on appeal and i just have to correct that the footnote to united states versus thomas in which i talk about various cases are collected at foot six not footnote two and that's page twenty six of my brief and i'm sorry about that  problem ok so my client didn't wave in part there are two kinds of waiver the government says happened here one is that he waived on his entire challenge to the search warrant that he made trial and it does seem to me that this is a fairly conventional case once you make a motion to suppress evidence it's not as though you have to object to submission again at trial and remember it was the government that initially brought in the body recording at trial they brought it in at the end of day to my client's lawyer didn't bring it in what the government did was play part of that recording and then the defense asked to play the rest of it  so i don't think he waived by bringing in something that the government had already brought in when it was subject of a suppression motion that he'd already made the other claim that the government says waive was waived was waiver of the claims of unlawful arrest and questioning and the phone search that we make relying on the united states versus norah in our brief and this was a suppression motion it seems to me that was brought it basically start suppression of all evidence based on the unlawful entry into number three and he believed that it seems to me that that was in five he talks about how he believes the reasoning for admitting it seems flawed to the extent that the evidence obtained subsequent to mr neil's arrest was a direct result and fruit of the officers unlawful entry into the apartment that's a quote from that part of his objection so we don't think he waived that claim either and next if it is happy to answer those but the issue here is does the court really feel based on this record in the facts that they've or the defense has articulated is there a reason to invoke the exclusionary rule to any aspect of the claims that they're making here this morning with respect to the issue of the arrest and the troopers going into the common area of the apartment is harmless a or all of the all of the complaints that they're making here this morning even if they were provided to the court trial even if they were suppressed none of it would have made a difference because at the end of the day the trial evidence in this case was absolutely overwhelming we had two cooperating defendants testifying during this trial we had independent source evidence from the phone records which is evidence of stablish where mr neil lived in apartment number three the landlord was interviewed the ten from number two in the apartment was interviewed they both described mr you know physically both described him as somebody who would come and go infrequently and all that information corroborate most importantly in this case the physical surveillance conducted by the troopers outside of what the tracker provided them information if the court looks at the record here with the search warrants and the testimony that tracker was only used three times the first two times mr neal went to his residence on arctic after that in five or six seven times he did the parker on one block away from the residence which was physically surveilled by law enforcement officers as well as a plea up above on nov twelfth so the tracker argument really doesn't make much sense here because it really didn't carry the day carry any weight with respect to the law enforcement officers physical surveillance because really the trucker just tell you were a vehicle goes doesn't tell you  by law enforcement so with respect to all of the complaints here if the court looks at it in terms of do we need to reverse this case for sentencing or for a retrial or for hearing it doesn't make any difference with respect to count seven even if the court suppresses the evidence from the search of the apartment and the pound of heroin which had mr fingerprints on it that doesn't matter either because it's not going to change the sense of the end of the day it's only half a kilo and he was sentenced to six or seven kilos extra time for a battle thank you or i would disagree with the government's reading of the record that what the the government of taint about my client was based on physical surveillance it began with they there's some testimony and in which their office or talks about them getting we we saw a pattern with what the tracker was showing us and it showed us that he went to a lot of different locations so you have to narrow those down what we found is that he was going over to fifty four o two arctic on november sixth and seventh to me that testimony means that they discovered arctic from the tracker so it was not independent  the i disagree that the air is harmless first of all if you vacate a number count seven which we think should happen because the evidence was suppressed should have been suppressed if we vacate count seven then the sentencing packages unbundled and what we have is those that was actually the only seizure of drugs in this case the rest of the amount the rest of the quantity was an  extrapolation from the testimony of others and i just want to quickly note that the seizure of the phone from my client's person really matters because we have many texts and i understand that but to take the phone from