we're talking about rings or sounds there really is no reasonable expectation of the right time so let's change the fact pattern to there's no rain that on this on the face of the cell phone pops up incoming call from whatever the phone happens that a call comes in from a third party i think that's one thing but if it's the officer just calling from one to another i don't think  riley allows you to do that because the screen if you're looking at the screen you're getting data from inside the phone and i think that's why the supreme court threw that f about if you want information from the phone you're going to have to get a warrant and i think the point here the question is what information from the phone was revealed the there first is that yes you sending a message but the information is the notification that came up on that phone rather than his partner's phone or somebody who worked that's exactly the same as with a phone call you learned what phone breaks yes but you have a you don't have a reasonable expectation of privacy in a rink if i have my phone on and here it rings i can't possibly have any subjective let alone objective expectation that other people won't hear it you can't shut off your ears other grandmother got here that's true if you put your phone on silent mode and i call you right now or i'm vibrate mode and you pick it up and you look at it you see my incoming call from my number so i all you have here is a different a different medium right you have an instant message yes and i think the screen matters and that's what the differences there is that if you have if i have a phone in my pocket screen might matter in a circumstance where you have an individual under arrest and you and there's no phone call in or instant messages or anything like that but you say i wonder what the screensaver picture is and you push the button now there  know you have an argument you're getting something from inside the phone you're getting part of the contact on it but i don't see how with instant message your phone call you can anything like that i think well there's a reason first of all of the detective did it because it gave him information that he wanted namely is this the person that i've been exchanging messages with or is the holder of this up and the person likely has been exchanging messages i think they knew don't you when he showed up in the parking practices here which is if you get a phone searched to arrest just turn it off or put it in one of those farraday cages that so the signal can go in and out because you want to preserve the forensically you want to take a snapshot of the right before you took it and you don't want law enforcement you don't want that phone to be transmitting and receiving any kind of data after it's been se could bring up a trial well got on the phone after you had it before you turn it off and i think that's where that matters here is we get pretty deep into the weeds once we start it's a mistake for us to wait and this law enforcement does best with clear rules about what they can do and what they can and what they've made pretty clear and rightly is look if you have a cell phone that you've se that's how you preserve a cell phone that especially if you think you have probable cause to arrest the guy already you know you can get a warrant for that phone in fifteen minutes and so there it's not a defense forcing the rule here you can you could suppress the god of the gun case or drugs in a drug case you could still get a conviction certainly get past the grand jury if you didn't have those things and so having the standard that well it eat up all the evidence or it makes it very hard rather super difficult is it really a workable standard and so i'll reserve that last minute  positive but there has to be some sort of remedy that this court can get that the defendant would benefit from should there be a ruling in his favor in this case the defendant concedes that the search warrant would have been valid even nothing that the federal charges had absolutely nothing to do with the defendant communicating with the undercover officer meeting the undercover officer at the mall nothing whatsoever in the federal charges and even relied on that at all the federal charges relied entirely upon what was based on that phone there was no statement that he made in response to the snapchat that would have been used we don't need that we didn't know what was just to show this is absolutely the defendant in this is the defendant's phone i'm not saying you would get out but couldn't you have as part of telling the jury the story this is the guy's found and now we're going to get to the main attraction which is the evidence that was recovered after we searched it i think that's our distinction to make between could have and would have because i wouldn't have could would a judge allowed it i don't know the answer to that it seems unlikely the production were very robust in that you could identify the defendant in the pictures you can identify the juvenile in the pictures having my experience with be a waste of time i think it would have been and a waste of time it would have come in that the phone was taken off of his person and then there were images of him and a child on the phone that that is what i see a child looking like so you think there would be a rule for all three direction i mean and shouldn't so the court disagree and it seems that it does we don't think that the fact that it was a snap chat chat a notification as opposed to a ring makes any difference identification to communicate with him to use to communicate with him as part of the undercover activity he was essentially giving the officer permission to communicate with them and to send that phone messages  and then answer the question about the difference between a visual notification and a ring we know that a ring is ok and it seems that there can't be a difference between sight and sound when it's in plain sight just thinking about it logistically it would require an officer to know whether someone had their phone turned off or on vibrate or the volume turned off before they sent a message because if it was turned off and they sent a message or or called it then they were violating someone's fourth amendment rights but they weren't at the phone was turned on not just simply can't be  unlike reilly that the defendant relies on there was no manipulation of the phone there was no attempt to retrieve information on this is simply to be equivalent of a confirmatory running and was not a search  valid we proved that it was decided that it was unknown i didn't know that on appeal he would be conceding that issue and i think that's where the problem comes in with it being just  incriminating evidence so we would argue that the plainview exception here doesn't apply as for i'd like to be able to answer i can't really reveal about what