the starting point here is that the police searched mr fleming's residence without a warrant their search was therefore per se on reasonable and is the government's burden to show that the search fit into as a supreme court said it in cats one of the few specifically established and well delineated exceptions to the warrant requirement because of this presumption against weren't least residential searches of probation search condition can authorize a residential search only if it does so clearly and unambiguous now california courts do regularly impose search conditions that clearly and unambiguously apply to the residence by imposing a condition that applies to both the property and the residence of the probationer it seems to me that your your biggest hurdle here is the people versus bravo so maybe you can talk a little bit about it because that gives us the tell you really need to apply  and terminate whether or not it was reasonable for the law enforcement officers to interpret the term person and property to include his residence and that as an objective explicitly reached only one issue and that was whether a suspicion a search was authorized under california law while the search conditions said person and property the defendant did not challenge whether the condition applied  residence and so the court did not address that issue at all this seems to be a textbook case of an issue lurking in the record that does not constitute precedent the case as the court said the defendant acknowledged that he was subject to the search as a condition of probation and he argued however that notwithstanding the search condition of his probation a rule of reasonableness applied that rule of reasonableness was the only issue and so the court did not address the scope of the search condition all brother shows is and seven there was a police officer who believe that this her condition applied to the residence and there's a defendant who did not challenge that belief and did not at all address what the court's view of the scope of the search condition was if i understand  crux of your case you're arguing that the police officers read the terms submit your person when they're looking at the his key the mr fleming's condition of probation that said you know submit your personal property to search and seizure at any time day by any probation officer or other peace officer with or without a warrant a probable cause or reasonable search i think that's the rel argument i wouldn't i wouldn't go there your honor i just think the question i believe is more narrow just what objects can be searched under the scope of the search warrant your view is that the word property is not sufficiently broad to encompass his exactly on a so what case do we have that says that well granbury was reached at issue in the context of perl and ruled that the property under control search term does not apply to residence and i believe that the reasoning from that case applies equally in this context we also just how we apply california law we clear that in determining the scope of this condition of probation we apply california law sure resident if a california court would say this is pretty clear when i say your personal property that's meant to include everything under your control it's meant to be an all encompassing tour why shouldn't why should we interpret it that way  anything under your control certainly aren't so every other case we've seen where the residence is searched there is a search term that specifically said person property and residence or including residence and what we see is over and over again in the pro context it's mandatory for the search term to include the term residence in the provision context courts regularly say specifically the residence is part of the search term in light of that context you know these are police officers who regularly employ apply such terse search terms going back to your honor's question about what was reasonable here if they regularly see search terms that say property and residence here at the residence was omitted that omission must mean something because again this is the government's burden and so do you acknowledge were applying a reasonable objective reasonable reader test yes your honor but in light of the context and background  court made clear that the term property in a search condition cannot be repelled to apply to specific forms of property that require heightened constitutional scrutiny there is the south and here we're dealing with a residence that requires that strongest th amendment protections as a result the question isn't just could a reasonable officer have interpreted this term this way but could a reasonable officer have seen the term property and thought that it clearly and unambiguously applied to the to the residen that in that regard as well this is a question of california law but there is no california case on point here at the government hasn't pointed to a single case where a court ruled that the term property context like these were the good faith exception only applies if the binding appellate precedent actually would have authorized the police's conduct at the time not if the precedent was questionable or unclear in any way the court made clear that if even if the government had a plausible view of the law that does not constitute good faith it's only actually binding precedent that goes back to united states versus davis where in that case the th circuit actually had binding authority at the time that authorized  conduct and then that authority was later overturned by the supreme court in that context the police couldn't be faulted but the police can act based on unclear constitutional authority again because they need clear authority in order to justify your honor still aris for the united states governors are correct that the core question of whether the term person and property applies to a mr fleming's residential property here is a question of state law and bravo makes abundantly clear that the test is an objective reasonable person test and it rejects any idea that the that probation search conditions are subject to principles of narrow construction the other thing that bravo rejects is exactly the interpretive principle that mr flynn is advocating which is the idea that officers should analyze the condition in light of legal precedent that draws fine distinctions based on the language of other probation conditions imposed by other judges you really look soley to the condition that is front of you you look at the four corners of the condition that someone is subject to and here mr fleming was subject to a condition that covered his person and his property and property is quite a broad term this court recognized in king that california law has very broadly construed the scope of its probation search conditions and this court isn't at liberty to reject that broad construction whatever your apartment  i it does because he does have a property interest the question is again it is what is it his property in the particular condition that was imposed on him in order of property under his control and on a day to day basis mr fleming did exercise control over that residence he exercised more control than anybody who owned it he was the person who had a right to enter the property a right to you know dominion and control over the apartment given that he was the one who was renting it what do we do with the very ways california courts probation sometimes they say person property or residence that would seem to suggest that at least some courts or some probation officers don't consider residents to be accomplished with the property in where they only put person or property why would we interpret it to include residents so i don't think that most of the conditions are imposed by other judges again there is no uniformity in the california fair way to put there is no uniformity in the california system and so the question is based on the four corners of this particular probation condition how do we read the term property again bravo has rejected the idea that you look to what other judges are doing in other cases to inform the interpretation of what this judge did in this particular case but i also don't think that the way that other judges in california the way that they're imposing their conditions necessarily means that they're adopting a construction of property that would exclude residents most of the conditions that mr frum has pointed to actually say property including and then they specify a particular list when you say property including a particular list that actually shows that you believe that property does generally encompass those terms and you're just making even more clear than the term property does on  face that i'm talking about your vehicle and i'm talking about your residence and i'm talking about anything that's under your control and that doesn't mean that when another judge does it that it's does it differently that it's wrong that they didn't mean to extend to the residents or that it's unclear that it would extend to residence reinforces california's rule of interpretation that you should be looking to the four corners of the conditions that are imposed on a particular defendant so romy a look to the particular condition and bravo and said look you've got this person and property condition and you've got it that search condition imposed alongside a requirement that the probation or maintain his residence as approved by the probation officer you have exactly the same context here mr fleming was ordered at the same time that he was ordered to submit his personal property under his control to search he was also ordered to keep  different meanings applying yes i think that's right i mean and again i think that that's reinforced by both romeo and brother because you have the exact same language used in both cases you have keep you maintain your residence is approved and person and property and  courts have interpreted in that context those terms to apply and authorize searches of your residence so yes you can you know it's and you say tomato i say tomato it's that your position that the work property would include a residence residence narrow yes i do think that the word property would include would include residence and that generally residence is a narrow type of property is a particular type of property yes it is a subset that is wholly some soon within property it seems like there's three options here that were presented to the district court and are being presented to this court the whole nights i mean we realize king state law and then based on us versus knights if there's reasonable suspicion plus the term you can go forward but there's also the good faith exception but there's the there's the there's the option of finding him as a chronic received as similar to a violent felon looks like the district court here with the good faith  exception what's can you tell us which one is your preferred option and was there a problem with the district court using the good faith exception i don't think that there was a problem with the district court using the good faith in section and frankly i think that the good faith exception would be the easiest avenue to upholding what the officers did here because then you wouldn't have to wade into this question of of california interpretation that again we believe is quite clear and unambiguous the times district judges do take and frankly i think it larry don't have to give their due i mean that's a i know you're suing for a home run but that's not a necessary finding in this case is no because i get i think the search can be affirmed under the good faith exception and off it was reasonable for the officers to rely on both th circuit and california cases that adopt a broad construction of probation conditions and on various california cases that specifically authorized the specialist searches of probationers residences when under the exact same terms so again i think the good faith exception quite squarely applies here now that we were ever to find who those two didn't apply you're asking us to make a finding on a basis not treated by the district court and not accepted by any other court in the circuit that we've proposed as an alternative to the good faith exception here is not actually something that  you answer my question is you are asking us to do something we've never done before correct hold that there were said that if you have a recidivist we don't have to worry about the conditions of probation i don't i don't think so and i  factual situation my question is have we ever addressed that factual situation apply the reasonable analysis the way you propose not no i don't i don't i don't think i think i king i think is the closest case king is the closest case where you have a nonviolent drug offender who's subject to probation search excuse me nights is the closest case where you have a nonviolent drug offender who subject to a probation search condition and this court affirmed a reasonable suspicion based search of that drug offenders resin authorized if they put nobody's arguing here there wasn't reasonable suspicion so the question is whether or not the probation conditions take us outside the normal th amendment war requirement i perceive you to make you be making a that here for you the i think the argument they were really making is that the analysis in lera should control and in lera this court found that the condition did not clearly and unambiguously cover a search of a cell phone but even though it didn't clearly and unambiguously cover the search of the cell phone the court still did the general th amendment balancing inquiry so the fact that it didn't clearly and unambiguously cover the search of the cell phone was just a factor that weighed in favor of the probationers privacy in this case that because he was or sort of asked and there was reasonable suspicion his property could be search with that award in this case i think you'd be much more difficult and i don't think i don't think we could make that argument because again when you have a condition like person that is so condition is more readable one way or the other but that the probationers privacy interest as expectation of privacy is more reduced relative to other probationer so here we have on one side of the th amendment balance their probation who is a chronic  has never expressed any on any belief that the condition actually doesn't extend to his home which is in contrast alero we did have a declaration that supposedly said that and then on the other high we have a state interest which is heightened because he is a chronic i will say i want to start with this point we're just talking about i have not seen a case and this court has actually repeatedly stated that unless the search condition clearly applies to the residence especially with the residence because that is where the warrant requirement comes into play if the probation term does not apply to the residence then what we just have is a warrantless search and you don't do a reasonable in this balancing inquiry when there is just no warrant for a search without a clearly defined exception i'd like you to address the government's good faith or if i could sort of rephrase it saying look lawyers can dance on the head of a pin or you what property is or isn't but a reasonable police officer looking at this language would say of course it from and then again more recently and i could substitute the letter this this case has come out recently in united states vs can no saying that the good faith exception applies only where the binding case law actually authorized the police's conduct not where it was questionable unclear not where the police maybe had a good justifiable reason to read the case law on the excuse me to believe that their conduct was constitutional but that there was no actual authority on point and again going the other way here would mean that whenever there is lack of clarity in the law meaning a a close question of constitutional authority the police could then assume that they have the authority to conduct a search because even if they're wrong in the constitution the good faith exception and apply and that's not how that would totally eviscerate the protections of the of the exclusionary rule what we need is excuse me the good faith exception applies where they genuinely had authority to conduct the search at the time and  authority was later overturned by overturned by the supreme court as in the case of davis it's not generally the case sometimes we say there's a defective warrant so you didn't have the authority to conduct a search the police about in our briefs where that only applies where the arresting officers didn't make any mistake they relied on the negligence of a county clerk or someone else or a magistrate judge who made an error the point is that when the police officers themselves  the officers here said that they regularly receive search terms and unless it explicitly says not the residence they see him they have authority to search that inverts that the burden here where they need actual explicit authority to search and not