thank you very much what we presented a basket of very important issues to this court in the wake of the supreme court's decision in jones regarding the level of suspicion is required for use of a g p s whether a warrant is what yes let's plug in that basket reasonable suspicion i'm not going to ask you this by the fact you look like you have a smile on your face right now with a really really really nice reasonable suspicion out of enough but i think i have to really have to ask you  has in asking is to conduct what would necessarily be reasonable suspicion i paced my case recent supreme right well not exactly who wouldn't we have to be balancing the invasion cause here could we simply say there's probable cause in this case it's not necessary to go to reasonable suspicion yes the court probably that as well ok well then let me ask you this question since those seem to be so simple and straightforward jump from there to figuring out a reasonable expectation of privacy i mean there's no war here obviously the g p s was on if as in jones there's a finding of trust us when we go from there i think we're past the question of reason my citation of privacy that used to be the test for deciding whether there was a search of the majority in june fundamental questions about what do you need a warrant for this type of search what level of the specially need for this type of search and then also we have a good faith question as to searches that took place before jones was decided so we have actually as the appellant here the government has presented three independent basis on which we think that this record should be reversed and so that this court could only reach one of them now these are very important issues for law enforcement this is a very important law enforcement tool to use  someone who appears to be involved in criminal activity and that's why ultimately we would like the answer and i think we'll get one one day if not from this quite and from the supreme court perhaps as to what level of suspicion is needed and whether  progressing in order there are three different ways in which the government can prevail we say and perhaps this is the the ultimate answer that ultimately has to be addressed we say that only reasonable suspicion is needed for this type of search that's a different analysis from the trespass with multiplication of privacy that's been the site this is a search according to the supreme court engines but what the supreme court has also taught is that there are different kinds of certainty and that some require reasonable suspicio only in the kind of case by case reasonable this approach that i referred to before in cases involving governmental interests more compelling and while no officer safety only comes into play if there's reasonable suspicion the person is armed and dangerous terry versus ohio first and foremost as you can stop a person it's a seizure you can stop a person on the street based only on reasonable suspicio briefly because the court balanced the level of intrusion involved against the government interest but the interest is pure law enforcement then you can also pattern down if you have reasonable suspicion that there are neighbors another example is united states vs place concerns there's no difference between that the special interest of oxy there are different points terry versus ohio we want to go right back to square one pair versus ohio was an officer sees two guys walking back and forth in front of the store and he thinks that casing the store in order to rob he has reasonable suspicion of criminal activity the supreme court holds he is allowed to go out and stop those people which an officer normally cannot do and officer cannot come up to near you on the street and scour movement based on those especially at all but he didn't then there's a second level which doesn't always apply which is you can also happen person down if you think he might if you have reasonable suspicion is armed and dangerous but the first the primary level of terry is this is a law enforcement stop because there's suspicion of criminal activity and what the supreme court said there and then all the other areas in which it is allowed reasonable suspicion and that's what you get as a special needs involving students that because it's reasonable to believe that officers that they needed to do could readily have got the surveillance themselves a month which is what jones was about twenty eight days is a totally different story why because he forces so there is actually  our partner concern exactly because the what we know the for no less is where we come back to your honest question about reason like vacation of privacy which the fourth amendment is still about as well as trust us a people's reason my expectation of privacy i think would say i don't the kind of operation they would need to follow me every minute for twenty eight days two days is a different story and so in the round of short term surveillance which is what this is a we believe that it's of minimal intrusion  in and of itself isn't the the great concern in this case is it i mean that's my problem with your automobile exception argument and i have to say this only for myself i mean my bigger problem here is that the government put the position from the outset they didn't have which i really thought would be the default position and that colors various issues here and including the good faith exception argument that's been raised by mobility is a value in of itself is not the basis of the arm exception is it it's the fact that m sure you want evidence manufactured would develop or however you want to characterize it put it in future of the reason for the automobile exception which is to arrest the potential mobility and get inside and yet evidence that may otherwise disappear us isn't here i respectfully disagree your honor the evidence is all the evidence is the information regarding the movement of the car and justice scalia specifically work out but there's you know there's no temple proximity in the same way that it would rise in the normal there is no as a vision actors or potential well let me if i could and i know i'm way over my time  evidence of the absence of a car what we what we say first and foremost is we can't do anything unless we have some suspicion of criminal activity whether it's reasonable suspicion or probable cause so once we have that suspicion we are investigating nobody is being charged the fact that information is gathered that shows that this car doesn't go anywhere that involves any criminal activity is itself up to the investigation and it's permissible so when your honor says you don't know what you're going to get that to breaking into the car and looking for evidence that the ababil exceptional allows an officer without a warrant to break into a car he or she might then find no adult so you've got itself as if you are human and put perhaps put it  correct to produce this information mere fact of monitoring is going to produce that corrected whether it's popular that's right justice scalia called the information we're calling it evidence but it's relevance of the criminal investigation and that's allowed as well if you have we say from mentally and to exercise ordinary judicial restraint and take the case before the court he's before this court it's clear probable cause clear evidence that these men were involved in a string of henri's to laser violence which immediately produced the we have to rule the roost in that situation of you have to address the standing issue if we don't prevail on our three arguments you have to address the sanitation and then we have an argument that the district court error in relying on that in saying that each kyla was one of those pieces in which the deeper is in the container and the supreme court says it doesn't matter that you know whether there's regulations here or not because the container was not in the possession of the defendant at the time the bieber was two because they have no interest in the people whose progress i mean exactly and so then completely different from of that so when we focus on the property interests here they don't have an interest now if we go back to the district court because we've lost on every other not we now know there was a fourth amendment violation so i have now moved on if we're talking about good faith i have moved on from the fact of a violation to the question of application of the exclusionary rule and what the supreme court has been trying to teach us repeatedly in recent hopefully the most and not only that but president as the comes from the united states supreme court the difference here is not fair to say that there was a division of authority among the courts in fact first of all two things first as to the legal issue before this court what i call short term policy forty eight hour surveillance whatever there was no appellate decision anywhere that condemned what the government did here and there were four circuits that supported know which one because if it's the circuit court and a question of the supreme court i witness well i think it's a combination your honor i think that what we're dealing with here is the culpability of the police of the agents is what is it i mean the agency alone didn't make this decision they just they can so they were consulting with an assistant united states attorney who chose to follow the policy of the justice department which which itself supports a good faith finding which states are and which has been used on also a lack of third circuit that's right but the supreme court in them a letter case says consultation with the prosecutor is itself evidence of that but i think you have to look at the full legal lay of the land and not some high level are really important here as well as the cats decision that comes before it that establishes the reason most educational privacy is the reason we are here before your honor today is because of jones and the johns decision a five to four decision reaches its five justice majority based on a fourth circuit ground fourth amendment rationale which every observer traditional and otherwise had thought was moribund for forty five years so what you're saying here to two f b i agents who are trying to do sophistication is deemed much more intrusive they did but the question we have to address is can any reasonable police officer be expected to anticipate that and war importantly what's the level of culpability and this is where the hairy decision becomes all important that this cannot be addressed without you yourself have our view that this is new technology relatively new technology that we have questions being presented  effort to cover all the bases so sure what davis says your honor the response your honour's question is that we couldn't foresee exclusionary rule in order to make the default go get a warrant and an evolving situation make people go to the courts to get dispositive authority and what davis says is that is not the fact the fact is the purpose of this which interval is one and only purpose is to deter wrongful conduct of police officers all but the supreme court has it it's not minimal it's a major intrusion and it was citizen's personal property rights and the fact that the government thinks it's minimal i don't think trumps the fact that the supreme court does any other suspicion a requirement that they have probable cause i would like to know why are these facts you don't think there was probable cause even bigger war because the  all right you keep going back and forth between work requirement and whether or not there's probable cause here and what and how it relates to the real exception i'm not i'm not sure what you are doing that you know you're arguing that there was not reasonable suspicion that and if not why don't those facts give the agent's problems because the probable cause involves the automobile exception to the search warrant requirement for get your bill second probable cause ok isolated given the very questionable circumstances in which he was involved when they found him months after it i can see that those who backed arise the problem  there to be an actual rast somewhere down the road so i don't think and the supreme court in jones did not lay any claim to the length of the actual surveillance as was done by the d c circu intent of law enforcement was it was going to be as long as it was going to take crack and i don't think that that the fact that it was just a two day period in this case has any bearing on the court's ultimate decision well it's not a two day cas just kept on until right you know if there was a florida for two weeks and then came back the g p s would still be there or f b i agents to mclean testified that he was at home that night and monitoring the computer while i was in his house and that's when he got information about this particular incident could have been a week later two weeks later a month later he's the one of the monitoring i guess as long as the battery on the device lasted and government probably would have when installed a new battery this battery  is doing it so you i also do it if you would like to do it or if it's online for someone else you're worried that that's my response to our owners once again the idea is that the fact that  the automobile exception to the search for requirement requires some evidence of the mobility of the car in this case we don't have it there is no concept that they were going to lose evidence that evidence was going to be secreted or hidden from the government adopting the standard that the government proposes with respect to that would really be chaotic and produce results i mean misters ours and we all have jobs and the pick up the pieces if we adopt that standard of good faith that the government imposes which is you can rely on any authority anywhere at any time that supports its position will be picking up the pieces for the next twenty years i mean if you look at the language in davis in which it addressed the linkletter and and the progeny that resulted from reliance was on supreme court precedent i think he said they've said herring could be wrong i think those are the two cases that he did so if you will we can put aside for the moment the circuit court cases talked about this in herring to look at but i think we also have to look at and i don't want to go too far down this road the other night of the summer of two thousand and ten you really didn't have anything out there it was meant with regard to this type of monitoring correct but we also did not to imagine it i'm expecting the government to exercise caution if we look at least out of the other but without well why would they want to set the precedent of going for a warrant when you don't need one because it's the right thing to do is what the got what a prosecutor and what law enforcement should do is make that decision because it's the right thing to do in the sense that we should err on the side of protecting fourth amendment rights and when the government looks at a situation and sees competing authority in can be in different circuits and in fact governments we stop the circuits if we're getting into that kind of quantitative analysis in these kind of assessment is going to be an article standard like linkletter it's going to ultimately result in just a chaotic application and a diverse and divergent results from the good faith perspective have the opportunity to garner would have been stopped except we have a vision and second the information at the court finds that the stop was illegal then i do submit that mostly controls it's the seizure of the individual that provides a standing and it's not a search issue it's good morning your honor yes my name is catherine crump and i am here to represent the thank you very much for giving us the opportunity to speak on this important case if i may i'd like to first use my time to focus on the jones issue and then if there's any remaining we apply the exception by saying look the basic purposes of it are the inherent mobility of the vehicle and reduced expectation of privacy a cart so does does that mean that the point several of us raised an argument that that exactly was what was in or factually this model of relix in our not real exception cases and that here you don't that's true but i think that supports the idea that the government should obtain a warrant based on probable cause before attaching the g p s your concern i presume is that the government will say ok bobby jones is a  time to address good faith i think the government's argument that reliance on the u s attorneys approval isn't sufficient although it may be helpful because that personally incentivizes government attorneys to take the most aggressive position possible a the fact that a u s attorney signed off on a particular course of surveillance was a reason that a court would then find that there was a good faith exception to the requirements just record that that's correct your  honor i did want to take a moment to address the government's most aggressive argument on the jones issue which is that the privacy issues that secure ourselves in the mess that they are not even required to have a little cause that reasonable suspicion will suffice i think the problem with that argument car period this rule is so imbedded in supreme court jurisprudence that when you go back ninety years to when they first announced it they were talking about wagons they weren't even talking about cars or mobile homes or the other things that they've later applied this year a warrant short of fourteen days because that's an instance where you clearly would have a war and we satisfy the need for magistrate could look at this that could that could be reasonable but again i think we have to argue the case before us i don't think it's fair for mr dreier to argue well the exclusionary rule of the supreme court has said is the last resort the fact that you have a violation of the fourth amendment does not mean the evidence is excluded the evidence is only excluded where you balance the time and i don't know of any prosecutor or any or most judges who saw this made it is not applicable manere is a twenty eight day of surveillance and that's not what we're dealing with here there was no authority there were only certain towards supporting this but monitoring from a longer period would you say this action thing we have to worry about we have to worry about in this case but i think you do worry that there are other applications of this that make it important to confine the decision to the facts of this case knowing that other state of the world there would be some modicum of the term benefit officers would be more careful they would do what what someone suggested which is to say i'm just going to get a one and the supreme addressed that and said no it's not worth it for that modicum of the term benefit we are not going to apply the exclusionary rule and let gentlemanlike the captains walk free of the criminal conduct that they engaged in that's why herring is so vital here i'm not arguing that if you wanted to impose a rule that said in an area of new technology always get a warning that should be the rule fine but that's profoundly consistent with her which says this is we're dealing with a narrow exclusionary rule it's our last resort and that only applies t