good morning your honors may please the court devon verse on behalf of miss full ask as your honors there is no and there should be no fourth amendment free zone at this country's borders the border search exception therefore should be interpreted and should be understood limited and tailored by its historical purpose and that is to prevent people and contraband from the legally entering the country here the celebrate phone search did not fall within that purpose before we even get into that yes y shouldn't the evidence here be admitted under the independent source doctrine no your honor tell me why not so it's important to understand we're going to talk about the independent source doctrine what actually begin with what happened below so the government if we look at page one forty seven let me ask you some questions and maybe we can get to right to it wasn't there later probable cause when the government obtained i think the warrant to search all three phones there was a finding of probable cause that's how they i mean the warrant is because she crossed with fourteen pounds of drugs correct confirmation and then she had three cell phones i guess in her car the supreme court's decision and then under this court's decision hill and the quote is where the district court essentially did not explicitly find that the agents would have sought a warrant if they had not or earlier conducted the unlawful search then the requisite course is to vacate the judgment and remand to the district court for a determination whether the warrant authorized search was truly an independent source of the challenge evidence in other words we don't know because the record is unclear i know so i mean the district court never reached this but it wouldn't reach i mean if it got sent back when the district court reached this to determine that yes your honor and i think that's exactly what hill did this court's decision in hill would it would remain the case for a finding as to whether or not because if and i'm just trying to figure out under the facts that we know in the record what why would there be a probable cause determination it's not probable cause your honor that's the wrong stand now so what is the standard the standard independent source is whether the agents would have sought the warrant whether it's truly independent in other words if the agent problem caused me to get a w though you need probable cause but that's not you don't survive under the independent source with just problem because let me say i understand but you need there needs to be a finding that the officers you know would have sought that without having seen any presumably tainting correct i understand that the evidence from the initial search of the phone call that the day that mr velocity as was arrested correct correct that determination wasn't made  likely could be me that determination should be made at some time and it's a simple process we get the agent on to the stand and we in the government will begin with its direct in the agent will presumably say in all candor either yes or no i that we don't know right and that's exactly the problem therein lies the problem that's why i can't that's why the government can't rely an independent source because this court has said well it could still yes that's a greenish on independent source we would have a brief hearing on independent source and i think that's an entirely appropriate course here because it wasn't fleshed out below me ask you if i can about rightly yes you don't you  press writing quite a bit here and i wanted to ask you does it wryly explicitly leave open that cell phones may be searched in the context of their exceptions including exigent circumstance wryly focuses yes yes ok so does it then by allusion then also leave open that cell phones can still be searched at the border subject to the border section absolutely that this is not a border search because it doesn't fit the border search purpose any exception to the fourth amendment must rise and fall on its purpose an exception can't be divorced an exception to a fundamental right ca divorced from its purpose this case we press wryly not because we're claiming riley over rules copperman to the contrary our argument is that this is not a border search under the border search box and therefore that is not that was not the purpose of the of support to search no book the prevention of the direction of drugs is not a purpose you know the the the prevention of the your honour's last statement is one hundred percent correct the purpose is to prevent introduction of drugs and was done and this is a circumstantial evidence to convict somebody who is green drugs into the country over the border the purpose is the customs based purpose your honor it's to stop leads actually in our favor because she was arrested and put in jail this is a post arrest post contraband seizure search and more importantly there's a third factor the cell phone was sequestered and we know based on the holding of riley once the cell phone is sequestered there's no danger of the evidence being deleted this is not that tough of a case they could have just gotten a warrant the answer to paraphrase riley the ensure to the question of what federal and the cursory search and the forensics or search still make sense as the categories to think about regarding cell phone searche the one word answer is no but the but is i don't think it matters for this case and the reason it's not implicated is we're not asking the court we're just saying this isn't a condiment case let me just explain why just to quote agencies condiments laptop at the us mexico border in response to an alert based in part on a fifteen year old conviction for child molestation the agency allowed the cotter mints to leave the border crossing at six pm but retained condiments laptops and digital camera that's a border search they're searching for contraband not a post arrest search not a search engine isn't to arrest he wasn't arrested because the contraband was in the computer contraband and that's the same thing inside and that's the government relies heavily on side and they say it's a devastating blow i an encouraging pat on the back and what happens inside i just to quote again the agent westlake then inform side that he was being detained for an administrative proceeding before an image gratian judge in other words they search him before arrest to put him into immigration proceedings to prevent him from entering the country that is a border search would reasonable suspicion for all types of cell phone searches cursory and forensic be enough  we know that on their wryly if it's not a border search it requires a warrant so the clear answer is no this case turns i guess for why is it reasonable standard reasonable suspicion the right standard given the competing interests of the privacy and the border because the supreme court has said it's not if this is of orders right you're talking about rightly in riley which wasn't a border search right but if you so ok i think i know whe honor is going so the question is because you're saying look out at riley well we can look at riley and may have implications here but it's we have competing interests of the border search and the privacy interests as reflected in the riley riley decision it's a great question so i don't reconcile those let's talk about and here's the reconciliation it's already been done caterine says would say and i think my friend would you would concede if this is a border search reasonable suspicion was required they basically say that in their brief and that it was met so cottam in reconciles that i can't stress it enough if this is a border search under c reasonable suspicion is required we can argue about whether it was present i'm not going to do that right now in the support of specific question that's one part and i think my friend will agree if it's not a border search if it's not within the purpose and scope if this court finds it's not a proper warrant was required clearly under riley so the case turns really on whether i mean leaving to one side briefly that whether there was reasonable suspicion to search this ring tone folder let's just leave that to the side other than that  case turns on whether the court finds this to be a border search or not if it does carmen applies if it doesn't really apply because there was no contraband on the phone they weren't searching for contraband objective lead they weren't the contraband had been found and she was arrested and the phone had been sequestered it's not just one your honor it's the three factors there that the objective facts not subjective is not a ran this is an objective test and your  rey for the united states i believe my opponent's first sentence is that the should be no fourth amendment freezone at the border we couldn't agree more and that issue has already been decided in court in this court district court here justified this warrantless search of a cell phone because it failed reasonable suspicion on second i'm familiar with government does the rationale of the reason for the border search exception matter i promoted here i think there's an underlying assumption well because it's not clear from your brief it seems like you contend in your brief that the rationale doesn't matter in determining how to limit of the balance of the border search and i think searches at the border are reasonable simply virtue of the fact that they occur at the border that would appear to be encompassing this case but then i'm saying on the other hand if you want to talk about the rationale first of all i'm not aware of any authority of this court that has ever read the exception so narrowly is that it's only limited to contradict let's talk about the search in this case miss the last case was arrested at around six six am who that she was detained  interview the self right search of her cell phone was not conducted until some six hours later and i guess how at that point you know six hour later six hours later are the purposes of the border search exception of keeping out contraband and unwanted person didn't the search then become a search incident to arrest at that point i want to start with the very last phrase we're not you're looking for crop orating evidence in the phone correct so yes ok it's that's for the investigation of her that's not to stop any further you know there's that you're not going to find any drugs distinguishing from supreme court said in riley which emphasizes the exception you know needs to be valid and so i'm just trying to figure out here you you i guess are of the opinion that riley doesn't matter at the border of it doesn't matter but if we were to take my opponent's ugly suggestion then the border wouldn't matter at all is that right i mean because he wants to treat this is just like a of the fact that the phone is still at the border she still detained at the mall i think though it seems like if she seen her text dean or something going on certainly you'd be able to do it but i'm just i'm trying to figure it out i don't know that  'm certain here how this should be resolved but there are some competing principles here of the border exception and what the courts said and riley and you know it seems like in riley the supreme court clearly held  physical objects and cell phones are different they seem to be very concerned about the amount and type of data that we carry in our cell phones it talks about cell phones representing the pinnacle of privacy interests and then we have the border which is of you know of protecting you know our borders and so you have these two hyphen entrance that intersect in this case and if riley required at least to wharton in that case shouldn't that in turn opinions side by side they could have been written by the same person just because you made a very detailed inquiry call them and about every concern you want to just pointed out so you can see that because it sounded in your briefing that you were saying we don't need you know that you had said something a few minutes ago to i think it's important keep in mind at the time of his phone a search yes she's been arrested and yes some drugs have been found in her vehicle there is still leasing ins to search a  the border in real time sometimes there's other drugs that the investigators haven't found yet in the vehicle there may be messages about a cohorts coming through with more drugs later so i just want to at least have a point that i think my point would have  the purpose you just said to i just want being here and the first searching the phone six hours later was to find evidence that would corroborate the case against in part without a doubt that's one of jack to but it could also find more evidence of ongoing crime and i would point out in court or been that phone was searched five days later one hundred seventy miles removed from the border and th still is a border search but that you're looking for the contraband in the computer right that i'm seeing here of course you can't find drones in a computer but you could find evidence related to ongoing i would say in the united states versus selves on of cell phones even at the border exactly which is why i caught him and said for a forensic search you need reasonable suspicion and in no time in the history of this country has any court let alone this court held that but in riley they said  needed a war right but right he wasn't about the border so there has just been he said ok you know i understand what your position i think maybe that some people might say you know if it's at the border no suspicion no nothing who cares that's not what we're saying we're taking that intermediate compromise they caught him in it's self you take you position that the rationale for the borders which is not only to keep out contraband itself and to keep an authorized person but to keep drug dealers exactly or evidence related as the case for nine hundred seventy nine united states versus grayson it's relied upon in soldier on which said they've read somebodies papers in the pocket of a man across the border and they said and this is a page twelve twenty seven this is five ninety seven that second the customs inspector read the papers to determine if they contained or related to contraband so if there's murder if you're looking for the purpose phone if i recall correctly dale and the supreme court just recently in brierley seems to have taken great pains to distinguish you know physical objects versus cell phone i'm just trying to see what us here in this case as a result and so i'm curious because this is just raised a lot of questions can agents at the border require you to give to the level of suspicion is needed to do this if any now for a password to do what happened in this case there to ask for a password again i mean i would say it shouldn't be any more than the reasonable suspicion the criminal activities afoot that is the here and whether or not the selp right investigation that took place was more similar to and agent briefly looking through your phone history apps were not broached and it took half an hour whereas the forensic examination carmen two days in this warranted search here also took more time but i think that shows again to go to the overarching theme we're not asking for anything goes the district court assuming that this is a forensic examination which is the more involved one the district court therefore held i'm going to see reasonable suspicion unfounded that is not in  and at the very least was also an argument i want to make sure i preserve there's good faith i mean these officers they are acting you know caught it isn't on by a pronouncement from this court and this was at the border this wasn't a search incident to arrest in the question it came one week after the case was separate trial in other words after the government knew that this would be a guilty plea this court is obviously where of the volume of cases we have of the border the fact that they don't search it right away they want to see if somebody goes to trial and not only that the work wasn't just for this phone it was for all the devices in their possession yes the district court didn't squarely reaches below but it's also a prison wall that this court can reach on any basis having support and search this device pursuant to a warrant yes what did you find i believe that gives enough information for this court to find an independent source if it doesn't also find under good faith or and without the patient of the border search principles themselves