time for rebuttal so unless the court pursue prefers that i proceed differently i will jump right into the th amendment argument your honour's the the crux of the disagreement between the parties in this case is whether a territorial restriction on a location tracking warrant is a technicality that law enforcement can effectively ignore or instead an integral part of the warrant that limits a search in a constitutional way so in order to limit it in a constitutional way it has to  intertwined but but i think a bit distinct arguments one is the particularities argument that when you have a location tracking a warrant the place to be searched is not the car but the car over time and space and so that this is a particular problem but also after we filed our opening brief but before the government filed their answer in brief this court decided united states versus henderson and that adds a little bit of a different twist that i'm not sure it's quite best characterized as particularities because what henderson said so what the what the government argues and the th circuit said was that venue limitations are technicalities but most of the sand circuit recently held in the united states versus brewer on all of these same facts that exceeding the scope of the state imposed geographic limitation where it did not violate the th amendment yes and so we would if we accept your argument we would be creating a circuit split then not we would not be agreeing with our sister circuit in a case involving the same facts and parties is that just so that i set the stage is that right yes but if i may your honor yes but i would suggest the th circuit has created the split because  henderson already exists in this case and that's what this court is bound by so whatever the force of the government's arguments in the th circuit or cast out or was the was the prior case law this court now has henderson and what this court said in henderson is that venue limitations on search ancillary restrictions they are fundamental constitutional limitations on a warrant on its scope they implicate core concerns or original founding concerns that our th amendment concerns so  i think a hopeful way to look at it your honour's is under under henderson head the indiana state judge in this case authorized an extra territorial g p s search head she issued a warrant saying you may conduct location tracking outside of indiana under henderson that warrant would be void ab initio this search would need to be viewed by the court as warrantless it cannot be the case sure honors that where the judge authorized less that law enforcement had authority somehow to do more now had the court had had the had the state judge written that warrant there might be some some good faith arguments to consider especially had my point raised  tracking device requires a warning yes there but how does the indiana warrant not meet the requirements of the th amendment of being based upon probable cause appointed by auteur affirmation and particular particular described in the place to be searched and argument isn't that there's any defect in the warrant the indiana judge properly exercised her jurisdiction and issued a indiana limited warrant which your legal authority that supports your argument that a state imposed your graphical restriction is required under the th amendment i think the jurisdictional limitations have even greater force when you're not just talking about magistrate federal magistrate versus federal magistrate but the territorial limitations of the state itself and where that state judge has authority nd your honor post henderson this court issued a case i believe it was the cooley case we say did it in a reply brief that wasn't about a federal that was indian land versus possible state authority and so i don't see the henderson is limited to those facts to answer touch callahan's earlier here is a warrant that authorized the g p s in indiana yes and anything was done in indiana was fine your argument is that a location device location information post most curious about the attenuation ok argument i mean it seems to me that here they they committed this bank robbery at the van or bank ok and however law enforcement got there came from that robbery why should that be suppressed so your honor we we would not object we do not believe that in terms of fruits of this illegal search that any surveillance video the bank tellers testimony none of that about ms pollack would of course need to be suppressed also but you're asking for well i guess what i guess our president provides that intervening events of significance may justify excluding a tainted statement or confession united states v crawford and which is an on bank decision so assuming that the end iana want was invalid or improperly executed by distant mr brewer's commission of a bank robbery in broad daylight not qualify as an intervening event of significance that purchased the taint of a port the man violations might have occurred because the only reason that law enforcement was there and observed him and so their observations are fruit overheard statements that he and his pollack made found the cash and the know right then and there but the only reason to all of that happened was because g p s tracking directly led law enforcement to the bank and i point courtney have to commit another bank robbery i mean and they were in the place rent a place that anyone could begin where what you're saying is they had to be there accidentally  brewer shot a bystander and the officers were there and they saw brewer shoot the bystander you know we still want the fruit of the poisonous tree because the officers were there only because they had the g p s device the information possibly your honor that would be a more difficult question here difficult well it's improv daylight there in a place where they have a right to be me i'm happy to i'm hesitant you might you know it makes it your argument less powerball perhaps that's right but it doesn't you know because otherwise it's just only a bank robbery that's that's right i guess i guess the slight difference might be the whole tough fit given that you're looking for intervening event or looking for you know did it tend to direct will it be right if you let him right through the nd bank robberies i think your argument so if i gree with you on both of those premises and i do but if if i do then we still come to the exclusionary rule an exclusionary rule is really reserved it's it's a last resort and i don't see and we use it sometimes yes when we're really trying to deter misconduct and this is a multi state bank robbery spree where there was a couple different units of law enforcement there trying to coordinate and cooperate they it's not like they blew through the warrant requirement they got two different warrants that the nd one of course doesn't authorize tracking him i'll grant you that no good faith and yet the court doesn't apply the exclusionary rule and the government has we have good faith here and it doesn't apply under his mission they wave their arms a little bit about good faith that's not their primary argument and then i'm a little distracted by the th circuit case which that these parties and this and that a different part of the same bank robberies free and they make a statement in there that the folks that law enforcement out in california didn't know that the st warrant was limited to the state of indiana probably didn't know it was a state warrant i have looked in this record oh see that here it's not because the government didn't raise good faith below it's not just that they didn't develop it they did not raise it at all in this case so that's why that's why it's we've not that they haven't adequately waived it here moreover on appeal they haven't even made this argument that i think your honor might be suggesting about did you know what the officers knew because of course it's a reasonably well trained officer and so to answer the exclusionary rule question directly  this is precisely the case type of case where we need this to sort of deterrent we have a core th amendment concerns here in terms of going beyond the scope of a warrant and at best law enforcement simply didn't read it warrant that authorized tracking a very sensitive data i think that's precisely the type of conduct that this court would want to encourage i don't rather warrants in this group i looked at the th circuit case it's not a sin it was an anomaly they described it as an anomaly on this warrant cuts off the defense of the poisonous tree its is some significance does it not well i think the significance is is in our favor your honor it shows precisely that they had time to go and get a warrant after he left indiana and but they didn't get the right one and so their execution a search on the car or what have you what warrant if you were as you had to do this over again and you were that agent may in los angeles working with the l a sheriff's warrant would you go and get that morning well so what the what it was i believe agent peacefully when he got the fed the june th federal search warrant he got it under provision of federal rule of criminal procedure forty one dollars which authorized you know what search federal criminal procedure forty one your honor your act i said i will give you some rebuttal time all let's hear from the government and i so i suspect i'm going to want to ask you and probably other panel members some additional questions and maybe about the sleeping sure and the excitement that the counsel issue but well we'll get back to you on how much time i appreciate your i thank violation as your honor has pointed out judge kristen there are two real requirements under the warrant clause one the probable cause requirement and secondly the particularity requirement in the context of particular ty all of the circuits to have addressed this question or similar questions have held that what has to be particularized is the object to be searched here the car the silver volvo that was absolute the  wasn't a search of the car it was the surface of the car's track was the tracking of the car correct which under jones is considered to be a th amendment search and so what the warrant needed to describe in with particularity was that car and it did well why didn't it need posing councils argument is that what it needed to describe is the area to be searched and that it was limited to so that geographical limitation is not actually something that any court has recognized as a constitutional principle it's something that is merely a creature of statute it's not for you you know maybe be more inclined to agree with you if it wasn't for the factual car in maryland i mean they had they literally had those same fracs that we have here well i think that aligns with the henderson decision in that this is those two cases are cases  which effectively at the time of installation or in henderson during the actual search itself there was no authority at all to do to actually engage in the search and in jones this was a trespasser a violation because at the time of installation there was no warrant that allowed it notwithstanding jones the faulkner decision actually that came after jones out of the th circuit held that even though a tracker was installed outside of the county prescribed by the warrant it was still permissible because it was within the time limit that the warrant provided here there was no trespasser a violation as in jones because at the time of i think that's actually one unclear from the record and indiana law but two i would point the court to palin's opening brief that page twenty one where the appellant actually cites indiana law and says that whether indiana law permits a state judge to authorize an officer to execute an extra tour of extraterritorial search is beside the point and then in parentheses the notably it does not in other words it does not permit a search under this under the defendant's reading of indiana law but if you look at indiana law the indiana statute doesn't actually say whether or not this could happen really problematic proposition counseling your grief alludes to the fact that you've backed away so i don't think you really need us to rule with you on this point in order to prevail today but i'm and from alaska and i have this image of a cracking ice so perhaps you want so you're one of the only reason i would actually preserve that argument now is because the th circuit decision after i filed my answering brief did point out as you have noted today that this case involved multiple indiana warrants that apparently did not have a geographical limitation so there is a question at least under indiana law whether that's permissible i would also note though that under the federal rules a for under forty one dollars before a nationwide tracking warrant was something that a judge could have authorized a federal arrest why look to the federal warrant and of course it's that it's a different kind of war and it's the wrong warrant absolutely i think that the reason i would distinguish henderson in part based on the proposition that a federal judge wanted the other ones ok so what is your best legal authority that supports your argument that a state imposed geographical restriction is not required under the th amendment brewer the case out of the th circuit and then i would cite to this case this court's decision an artist which also came out after our of our answering brief was filed but in artis what happened was i think i know i will not go into detail but then given the explicit language on this search warrant limiting the use of the g p s device to within the state of indiana how can the good faith exception apply here i think that the good faith exception would require a remained for further fact finding i know that the court has alluded to the seven circuits decision where the th circuit described whether officers may not have even been aware of the limitation and i do acknowledge that is not in the record here it would  indiana and to have officers testify as to what they knew at the time of the g p s truck and in terms of the attenuation argument briefly before we go to the other the other issues here  that the tracking device and therefore everything after that whether it be someone shot right in front of or the robbery in plain daylight what's your response to that so i agree with your honor and the hypotheticals that were outside point to the smith across the country it's that tough and i think the intervening events so the beeper lead them to the bank there's no question of a that the intervening events is what happens when they get to the bank because that's still four hours before the bank is robbed officers arrive on the scene at ten am on june th two thousand and sixteen the bank is not robbed until just before three pm so in that time there are a sequence of intervening events officers with on site eyes on surveillance watch defendant  case the bank they watch him walk around they watch him park and report his car around the bank they watch paul like to jump out of the car and run into the bank that is also captured on surveillance video there is then a bank robbery i believe the robbery itself is an intervening event of significance after which there is a car chase followed by an apprehension followed by bringing the defendant to a police headquarters where he confesses so i think all of those events are intervening events that do contribute to attenuation and that otherwise under the hypotheticals that both you judge callahan and you judge fisher were asking that this kind of a but for they wouldn't have been on the scene could counsel in particular i've read the transcript i'm sure we'll have the transcript for both pieces of the trial the sleeping juror allegation is concerning for sure and there weren't any written instructions here i know that is the representation the reply brief i don't recall i do remember a discussion about that during trial i don't remember whether they did go back but i would say your honor if you're concerned about counsel i was along with one other prosecutor so what exactly on thing what exactly did the court do that i think was it more than one time that i saw something in the record that the court said well just got their eyes were closed i don't think they were sleeping or something was if so what what what exactly did happen when it was called to the court's attention just that your honor it was raised twice remember this is a trial that lasts all of one an days and there was no defense case so there was the prosecutor standing in front of the jury for most of this case watching as well the jury and the and the judge from my recollection i did not see a sleeping neither did my colleague i've now ledge that there wasn't much of a record made by the corps i would also say though as to the instructions there wouldn't have been a prosecutor standing in front of the jury that's  that followed up at that point when in the end the allegation is he says there's a juror who slept through the instructions that is correct your honor the instructions and the import of the instructions particularly with respect to the elements of these crimes were also things that the prosecutor went through in detail during his closing argument my colleague and you can find that in the record as well at e r seven o two dollars to seven hundred and twelve dollars where the elements as the court instructed were also part of the closing argument what about the right to counsel the substitution of counsel so i think the point i would make about the substitution of counsel as well as the point about the sleeping jury is really that what this court should rely on is harmless disputing that i think that the harmlessness being if nothing else to argue at the sentencing phase he didn't have a defense really didn't put on went on in the end but the judge went straight to that so i would say that the competency of defense counsel he never inquired about whether there had been a breakdown in communication and what might have asked why are we even going to trial here we know after the fact that the defendant took the position that the police the government's offer was even presented to him until the day of that it was going to expire i don't know if that's true i don't mean to  intimate otherwise but it is it does seem to me to be a case where one lived wonder why this case was even going to trial hence was there a breakdown in communication and there is not a piece of that in the record so the i think still does apply i don't want to go right to that i would say the factors this court looks to in whether there was any conflict of counsel that necessitated substitution or a further inquiry by the court are the factors that are numerated in the case s both parties sites of the laskas walker one timeliness and i do not agree that this was raised properly to the district court in a timely fashion it was something that was raised on the st day of trial after the defendants letter to the court was rejected and the court in rejecting the letter was simply following the very rules of procedure that apply in the district court the same thing happened on appeal in fact at docket numbers thirty three and thirty four were claims he articulated to the district court it was simple only a general discontent with his lawyer which this court has held is not enough melendez sanchez says that that he says that he will not be excuse at least that i think what the law requires is what the district court whether the district court under the circumstances in front of it can simply conclude that this is the defendant's general under reasonableness which is the melendez sanchez language doesn't say it would have been more helpful if judge real had said this is the day of trial you've been obstreperous and i think that this is just one more of you're dragging your feet i see nothing here is there anything you know what you know he doesn't exactly go that far right i agree your honor and i think that he doesn't go near at all he said was that the defense counsel of the i think he doesn't allege with any specificity problems that he had the same kind of problems he articulated in his letter and so the question is under the circumstances where he is simply saying i don't agree with my counsel i've had issues with my counsel what does an abuse of discretion to hold that the district court abuse its discretion what does that mean and i think the melendez sanchez case is on point judge a real rest in peace is not one to like to give anymore reasons was not one in his lifetime to give more reasons the than many times that we wanted more reasons than he actually gave but you know obviously as a prosecutor your job is to prosecute people and to you know and to follow the law and to you know only prosecute those people they feel they have the evidence but it seems that you know i can tell by you know that you obviously know what the law is here why are you why were you sitting there like a potted plant when you see these issues about sleeping and you know that knowing i mean a state court would call it a marston hearing or whatever that but the why are you not saying well your honor it just seems like it would make some sense right now for the court to go into this a little bit further because those are i mean these are the type of things that can be you know they can be game you know you can get a conviction and then they can uproot everything quite yet if i were doing it over your honor i would have made more of an effort to say something i think the question now is why is there this necessitates a retrial and the issue can anything be remanded can anything be ascertained because judge drills passed away what a remailer and what a remain and what kind of remained accomplish i don't think it could accomplish anything with respect to the sleeping gerrish i did actually at one point during trial so i didn't see a juror sleeping either i do think anything at the time of the statement the counsel made that the juror was sleeping during instructions i think that is when i said something i'm not sure your honor at which point whether it was the st or the latter but i think it was the latter time that i said i hadn't seen it because i thought that you may be right i'm not positive about that so you may be right that it was actually the st time th issue was raised i don't i don't recall well are we now by i think judge real says something like well ok even if the eyes are closed that doesn't mean the person sleeping i didn't see anyone sleeping is that some sort of finding that they weren't sleeping or what what what do we do with that i think that should be construed as a finding that there was not a sleeping chair or that the court was unaware of a sleeping juror and if the court is troubled by these problems and i admit this was not a perfect trial by any stretch and i would have loved to had there been more of an inquiry of some of these issues but the question on appeal is is this something that we should really do and i think the reason the defendant doesn't bring these issues up is because there is no hope you four minutes thank you your honor is one brief now maybe i think probably i don't i think that the compound would like you to talk about the sleeping and th amendment issue i'll go right to that your honor and let me clarify a few points in the record if i may on this on the sleeping jurors excerpt of record six hundred and ninety nine the written instructions were not given to the jury also at excerpts of record seven hundred and thirty five this was when the nd instance of sleep jurors arose and this is of course the more important one because this is the one that dealt with the instructions so there can't be any question about whether this was an important moment in time the only the judge made no response at all and the only response from the prosecution was quote i didn't did which might be construed as i didn't see anything maybe more generously created a disputed fact that needed to be resolved so that that's the record on sleeping jurors and of course i didn't dress and ninety nine knots and in the written instructions you know i don't have that in front of me if i recall your honor that was where the one of the one or both of the parties asked if written instructions could go back to the jury and the judge denied that request  so i don't think it's any dispute in the record that the jurors did not have the written instructions you're running these these three the three issues that we raised the deal with the the trial itself who were specifically selected because they are structural errors these are not ones that are that are subject to harmless error i didn't get up here and address them because you know we can only address so much but but but these aren't ones that are susceptible to harmless error review if you don't have a conflict counsel then that's a structural ever if a juror slept through the instructions that is a fact structural error so there is a harmless in or out self analysis to be had on the marston point just just in terms of what mr brewer could or or or should have done we called it in our prime the government's position and i replied be somewhat kafkaesque because the situation was mr brewer writes a letter to the court three and a half weeks before trial saying i have all of these problems and he was right he shouldn't be writing to the judge we all know that and that is all probably not he's probably he seems and he should have been talking to the judge so he's clearly one of those defendants that wants a lawyer but also wants to say whatever he wants to say which we've all had those people before and but i'm curious why his counsel if there really was a breakdown that i've had counsel many times called to my attention your honor you know we like to go on camera because you know exactly that there's a breakdown by counsel didn't it that no that didn't happen your honor and when mr brewer gets to court of course is his st opportunity after reading the letter it's clear he doesn't even know what happened to the letter the letter of course was not returned to him it was sent to defense counsel and instructed defense counsel that it's your responsibility to raise this and mr brewer represents to the court at that oral opportunity he says i've been asking this guy you know i've been i'm asking him to raise this and he won't do it i'm not sure what else mr brewer could have done and all of this of course just evidence is the very nature of the of the conflict here i'm looking if i forgive forgive me but any are six hundred and ninety nine i want to make sure yes i'm sorry i don't have that in front of me i do it says that mr aldrin says the government would propose that the jury instructions be sent back to the jury during deliberations the court responded no i don't do that as a matter of fact if they want the instruction they can come back and get them if they don't understand that did the jury ask council what should the district court have done a district court should have had a hearing and it made me look here and do what they had no already done yes your honor the court didn't do anything the court simply talked to the defendant so the court needed to do something to get to the bottom of this and instead the court talked to the defendant said your turn is competent i don't know what you want him to do i don't know doesn't ask the defendant and doesn't give him give me anything that would suggest  he's not representing you that's right that's it that's a confidence inquiry which this court has been clear in a line of cases is not the right approach but he didn't say anything about you know i want to testify and he won't let me testify or i originally had a deputy federal public defender who then went out on a family leave and so then you counsel substitute in mr burr make clear he had no problem with that other attorney so this is not this is not a point you cannot make it work with an attorney he was quite specific about his complaints in the letter of course mr brewer had no way to know that the the judge hadn't read those he didn't know what happened to the letter it appears from the record when he got to court i do think there was some obligation on the judge to try to find out what was going on here was making clear that there was a communication problem at minimum and not a single question was asked for if even if you know a lot of times when you get this stuff from people people say the darndest things and you wouldn't always want a judge to read something that your client wrote to the judge apart from you because sometimes they they confess or are they you know they say and by the way you know i got a body buried over here already held ask specific questions to try to understand the problem of either the defendant or the defense counsel usually outside of the presence of government counsel would be the appropriate approach that that's not breaking new territory that is simply what's required under the line of authority that lately one of the even that wasn't required you'd have a much tougher argument if the judge had said it's the morning of trial you're too late well there's no i do think that we would still under the walker case have a good argument but it reviewing a question like this is still an abuse of discretion review is it not it is abuse of discretion but i would submit your honor that a district court abuses its discretion when it doesn't ask for any information with which it can exercise its discretion