mississippi courthouse but separately located in that courthouse to hear these arguments i want to make note that this is the st oral argument so do well for one of our members corey t wilson who joined the court a few welcome to judge wilson and also welcome miss brandon miss we have three cases today to hear the st one is united states versus brian and morton thank you your honor in may it please the court my name is brandon back and i represent brian morton the appellant here today your honor so there are two reasons why this court should reverse the district court's denial of mr morton's motion to suppress knew was false or would have known except for a reckless disregard for the truth this in back she's me he could you know point is that this was pretextual there really were after whatever evidence of his obsessions were sexually but when you have the case law that says we're not to look at subjective intent what do you say to the argument that well all that really relevant here is is this affidavit honest in so far as the facts are alleging is that sufficient to support probable cause is that not the only issue set of issues forms it only gives the only set of issues but i think this is an incredibly important point so i thank you for the question i think there's a good deal of disagreement as to what role subjectivity plays in this case and i think that it does play a role so when the district court denied the motion to suppress and made the statement that subjectivity is irrelevant the district court cited the case united states versus causey before this court also sided by the government when you read united states versus causey what this court was doing is rejecting the subjective intent exclusionary rule we are not relying on a subjective intent exclusionary rule in other words we're not saying the evidence needs to be suppressed because the officers intended to do something intended to mislead we're simply saying the good faith exception does not apply because the officers intended to mislead in when you look at this series of taters at the supreme court on good faith exception starting with leon in then haring versus united states and then arizona versus evans the st two of those are in palin's brief what the court is looking at is saying ok good faith is an objective reasonable this test if an officer objective lee relies on a warrant and just does their job there's no purpose for exclusion because it doesn't deter police misconduct but if you look at the limiting principles and all of those cases the court is then asking the question but if there's evidence that the police officers are up to something if they're trying to game the system in some way in certainly we would not apply the good faith exception in that case your best case some that point parent versus united states your honor that was the case where the supreme court considered a warrant that actually didn't exist but it only existed because of a clerical error and the supreme court said ok if that clerical error was single instance of me or negligence we'll look the other way but if there's any evidence that it was systemic negligence or rose to the level of recklessness or intentionality certainly we would not apply the good faith exception in that case when we look at the standard in united states versus jittery for this st misleading thing it says information that the afi knew was false or would have known except for reckless disregard so we compare what the well i reconcile my same response to causey written rejected subjective intent exclusionary rule so officers are allowed to lie to offenders they're allowed to mislead offenders but we're not going to suppress evidence when they do so but when officers rely are not acting in good faith they don't get the protection of the good faith exception so here the misleading nature is not why did he want to do  point of view good faith is purely a subjective matter well i think it's partially subjective i think subjectivity absolutely plays a role in good faith ok what kind of pro does it play well i have to try to figure out what the officer knew and compare it against what the officer said to see if there was anything misleading about it when you make that comparison  seventeen and the way you articulated the standard is a little bit different in order to get at puts an emphasis on the materiality of the reckless or false statement or admission the way you described it  judge jolly is a knowing or reckless false by omission or commission that's number one and then simply asking the question without the falshood with their been sufficient probable cause or if it's an omission if you conclude the falshood back in articulate it is where the issue judge was misled by information that the afire knew should have known was false so you need most misleading and false opinion misleading by omission of some other additional that the officers were seeking i'm not saying that it's an unreasonable argument i'm up front to find how it fits within the case fall that we have to apply and i think certainly misleading may be one way to look at this by scott being mislead doesn't it by something that's false as opposed to something that could have been said further to explain other of the goals of the search yes your honor i want to be want to answer your question so leon didn't deal with that  situation it's st defined that situation later cases that dealt with that situation before this court for example jarman in gentry both dealt with misleading and that's when you st see that it can be by a statement or an  mission so it's our counsel that you agree with you not that there's nothing in the affidavit that's misleading regarding the probable cause to search for drug related evidence is that right that's correct it's our well i would take it one step further not your anger in that the record the facts of this case the administrate that they were only looking for child pornography and yet they told the magistrate they were only looking for something that's where it becomes misleading and he disagreed that there was there was no probable cause to inform the surge related to the drug problems there was probable cause to search the vehicle but not the phone in even if it could reach the phone it doesn't reach the images on the phone so i'd like to compare that for example to several cases that the government size starting with united states versus gentry their officers suspected a person of drug trafficking and they had a lot of testimony from undercover informants they had the cell phones they had all of these things and when they went to the judge for warrants they wanted to look at the cell phones but they only asked to look at the messages on the cell phones because only the messages would contain that evidence of drug trafficking when the defendant objected in said that this was a bare bones affidavit because it only relies on the officer statement about training experience similar to what we have here this court responded and said not so fast in fact described all of these other things in the from just this year there an officer goes into a person's house finds a marijuana cigarette the officer then gets a warrant to search the house the defendant objected the court said of course officers can make reasonable to terminations that perhaps there's other drugs in the house we agree with that officers could have searched the entire vehicle for other drugs but we have a problem when it starts reaching a phone or a house or something apart from that vehicle experience that text messages with their buyer that sort of thing you disagree with having searched that those functions of the phone that would allow them to find those messages was a probable cause of the affidavit to allow that i disagree with that your honor simply because the drugs that were found in the vehicle reviews or quantity of drugs it's clear that this person was in enjoyed using marijuana  ecstasy on a personal level there was no evidence of engaging in drug dealing drug trafficking anything like that in light of the supreme court's guidance in riley versus california the priest supreme court said these are some things we need to take very very seriously for privacy purposes of course the officers could search that vehicle that officer should never have reached the phone and i simply made the distinction between text messages and images to illustrate the egregious nature of this invasion of privacy that you don't see even in cases such as gentry where officers have incredible amount of evidence of drug trafficking in still they're not asking to reach the images why why would you look at the images will we know why in this case because the officers wanted to try to find child pornography in fact every time they held up the phone in mr morton's face and said we want to search this they said we and so on so i mean it seems to me that there was a valid drug related reason to search the phone to determine the source of the drugs that he had i disagree particularly as to the images and i would simply ask the question where does the government wish to draw the line here can they go search the home for the other drugs he might have it cetera et cetera there's a slight drawing problem here and it gets much more problematic in light of reilly versus california where a person's phone is their life it contains the privacies of life and the point of riley the overarching point is you have to have a really good privacy rights it is an homage your honor my concern here is that this court has an opportunity or potentially make precedent that use quantities of drugs could authorize the search of a cell phone in all circumstances including images and i believe that goes far in light of supreme court precedent thank you your hours ok all right nic we'll hear from it please the court amber grande for the united states the appellant's claims in this case the gist of his claims amount to an un preserved challenge in which he speculates about the investigating officers subjective intent this question was not answered by the district court and it was not answered by the government in the tent below and in doing so he asks this court to overturn decades of precedent to the contrary  the however the record does show that the officers in this case acted in an objective only reasonable manner that any reasonably well trained officer would have conducted themselves exactly as the officers did in this case and as a result the suppression determination by the district court should be affirmed i'd like to begin by emphasizing the fact that this court should review these claims under the plain error standard of review mr morton made general allegations about pretext in his motion to suppress but it no time did he claim that officer blue made material misrepresentations to mislead the magistrate in order to secure his warrants there was no evidence presented on these points there was no frank's hearing and as a result the district court concluded that absent some claim or evidence that officer blue exceeded the scope of the warrant subjective intent was irrelevant  was if we're going to be in the business of questioning the officers subjected motivations and their suspicions of other crimes then we need to be putting on evidence and hearing in a franks hearing as to what those suspicions were and we're sitting here on appeal looking at the record to decide where they only looking for pornography were they looking for drugs and pornography and i would highlight that the record at page two hundred and seventy five dollars an officer out the winds report states that they were looking for both there were dual law enforcement objectives in this case so if if mr morton is going to take the position that this court should be in the business of evaluating their suspicions of any other possible criminal activity before they can conduct a reasonable investigation into drug possession then that's something the district court should have been apprised of a specific he didn't he didn't brief the four exceptions to the good faith exception the government did but the initial motion to suppress did not and he certainly didn't indicate that he was relying on the st exception the material misrepresentation exception instead he pointed only to the rd exception the bare bones affidavit and as a result much like the defendant  united states versus pote he challenge the sufficiency of the warrant but the affidavit but not the truthfulness of it and as a result the district court was never put on notice that it was being asked to decide whether or not officer blue was intentionally or recklessly misleading the magistrate in order to go on some hunt on a search for an office that was not disclosed in the affidavit or the warrant let me ask you how far the government would honor we believe that the th amendment allows the government to look for the source of those drugs and whether he was kidding continuing to serve you and i would emphasize that there were sixteen ecstasy tablets concealed in the advil bottle this wasn't somebody found with a joint in their pocket or with one ecstasy pill and mr morton pointed to the united states versus jones out of the th circuit and i think that's a really great example of the th amendment allowing a continued search there the warrant wasn't even based on locating the joint that warrant of the home was based on simply the odor of marijuana imitating from the premises based on the odor alone which we also have in this case officers obtained a warrant to search the house and the defendant's claim searches the seller of a joint of sooner joining marijuana a guru is is not would not enhance the criminal conduct of the person about whom you have evidence but you're trying to find the criminal conduct of others  that they were looking for evidence of the defendant's possession and not just looking for evidence of others that might have been involved and often it's because there were sixteen ecstasy tablets it's within the realm of reason that he was also redistributing those tablets that not as not one pill in his pocket so we for the st part of my answer is we maintain that this search was to search for evidence of mr morton's possession of drugs as to your question about whether they're entitled to search for evidence of other people's crimes i don't have a case off the top of my hand to address that but i would be happy to find a case i'm confident that that case exists i would be happy to submit a twenty page of the court after argument to address that question specifically but in this case the record shows at page two hundred and seventy five that the officers wanted to search for mr evidence pertaining to his possession of drugs and they also had these suspicions about child pornography there is nothing in th court's precedent that bars them from pursuing dual law enforcement objectives in fact and united states versus wilson which is a case out of this circuit the defendant made a very similar claim there the agents obtained a warrant to search his hotel room on the basis of check fraud and forgery the defendant claimed to that was a material misrepresentation in the affidavit because they really just wanted to go find evidence of drugs and this court said that's not a material misrepresentation at best you're claiming that the affidavit was complete but that's not a material omission because their subjective intent is irrelevant the cases cited by mr morton where you have a material omission those pertain to facts if you fail to disclose that your source your confidential informant supporting your affidavit has credibility is shoes if you fail to disclose that an alleged coconspirator was in custody during a portion of the office if you fail to disclose material facts that have a bearing on probable cause then you get into trouble with the good faith exception but there is no case law anywhere holding that subjective intent and suspicions of other criminal activity can amount to a material omission and render an otherwise valid search warrant insufficient and lacking in probable cause and the supreme court has taken this question time and time again starting with horton versus california and whether or not a plain view search that results in a not inadvertent discovery of evidence in other words the officers knew full well when they executed a search warrant for one thing they were going to find evidence of another thing moving to rend where you have pretextual traffic stops and as recently as ashcroft where the government was using material witness warrants to detain people that they suspected of criminal activity and in each and every case the supreme court said in the context of the th amendment we don't get in the business of looking at the subjective intent of the investigating officers in fact expand on your interpretation of reilly would seem to be a key case for mr baer how does that fit in in your view riley soley addressed whether a warrantless search of a cell phone incident to arrest was proper and the supreme court it's explicitly said there's no question about what you have to do to search a defendant cell phone get a warrant that was the last line of the opinion reilly and that's exactly what we did here so riley was a lot before the last line and certainly a lot of emphasis about how you're exploring a person's entire life by looking into their cell phone not mine but a lot of people cell phone so it does seem to me there is heightened concern and we need brain to the issue of what do  a cell phone and i look at the affidavit does seem to me unless you're saying otherwise and please correct me if that whoever drafted this is trying to write for a limited search warrant that would not allow access to everything on the phone who try to identify all text messages and photos as being relevant which i think is probably quite important if you did so or that the drafter of this did so and then doesn't mean that the key to this case is whether it's proper to search for you do you know ology me just ask you a serious question you knowledge do you say you touted to everything inside that phone so long as you can look at anything inside the phone number you need probable cause for each individual sort of category of information that could be you mentioned possibly the individual he was obtaining the drugs from so the photos would be would further substantiate evidence of the possession and the search was in fact a limited to text messages call logs contact lists and photographs so this was not a blanket warrant to dig into his e mails or or other as a blanket warrant to look at all his photos was it not it did allow access to the photos yes your honor but then the warrant and than the nexus and it simply has to be a substantial basis to conclude that approach to give rise to a probability that you'll find evidence there and so the affidavit here established that evidence might come in the form of pictures of the drugs pictures of drug proceeds or pictures of coconspirators and the government maintains that that was sufficient to meet the bar that is set for sabotaging probable cause as are our th amendment concerns i the search or an individual is going to are you going to get information and testimony against him without his heaven consented to it or where you would otherwise minorites i am i'm not clear on that issue as it pertains to this case but i would simply say once you get the warrant to assess the evidence that's in the cell phone those concerns would be obviated as would concerns with the th amendment in this case and and make no mistake there's no there's no allegations that the officers exceeded the scope of the warrant here in fact the record shows that they connected the cell phone to the cell brite application and as soon as they came across evidence of child pornography they stopped the search they stopped it immediately and instead went to get the nd set of search warrants specifically for child pornography and that's why the district court said look abs allegation that that that officers exceeded the scope acted objectively and reasonably subjective intent just doesn't come into play the the supreme court in leon explained in footnote twenty three that it would be a grave and fruitless misallocation of judicial resources to start looking at the subjective intent of officers it would lead to inconsistent results and and very improbable outcomes in cases such as this where you have probable cause to investigate one crime but suspicions as to another that in fact proved to be true let me ask you where would we be i know judge joey  descended to this and where would we be if the pope opinion was still the law the circuit we would be in a very different place than we are today if the original pope panel held true and the subjective beliefs of officers were constituted a material omission then we would certainly be in a different standing but twice this court has issued decisions where it attempted to dip its show in the water of subjective intent kazi being the other example and in cars you had an on ball revision of that position which found supreme court precedent and th circuit precedent demands that we avoid that we look soley to the objective reasonableness of the affidavit and the warrant and that's why the withdrawal of that opinion was in line with all the precedent that the government has cited that the the sole inquiry here is whether a reasonably well trained officer would have conducted himself accordingly and i don't think there could be a real question that they would have in law enforcement objectives so they sought advice from their supervisors they meticulously and carefully establish probable cause with details of the possession often send and the specific portions of the phone that they wanted to search for evidence of that often and the moment they came across evidence of other criminal activity they stopped and got the nd set of search warrants i'd like to highlight as well that the courts have the supreme court has asked us to look at the social cost of suppression suppression is not automatic it has to have a deterrent effect and you have to weigh the social costs there would be no deterrent effect here where the officers at all times were acting in line with decades of supreme court precedent holding that as long as their conduct was effect is if somebody has a marijuana cigarette was left of it everything on the cell phone all the photographs and cell phone all the text messages on the cell phone are subject to a search warrant and i'm not defending how people live their lives but there's an awful lot that would be found in both of those locations on a lot of people's phones and so that's what you're asking us to do  out yes it is so long as there are there's a particular i suspicion and a reasonable basis to conclude that further evidence of that possession office would be on the phone then the warrant would be supported we don't have to get there that's the probable cause question because we never get past the good faith exception in this case and the only challenge to the good faith exception that we have here the only real challenge is this claim of material misrepresentation and i just want to emphasize that we're reviewing that on plain error he can't cite a single case to substantiate his position that we should look at subjective intent as a material omission that misled the magistrate and his claim fails on the  in the questions that judge southwick is then address in were the low in terms of invasion of privacy of madison a completely unrelated to also cannot establish that the search was objectively unreasonable the law has stated as it stands today for decades the officers acted in accordance with that law without established president to demonstrate that they were acting in an objectively us i'm afraid i have a few things to say i'm going to try to get to four points as quickly as i first just a standard review simply point this court to page two hundred and sixty four of the record i described it at length in my reply brief it's under the heading why the good faith doesn't apply it's the longest paragraph that it says because the officers misled the ministry ok as to subjective in here are the same officers who were involved from every step of the way until they looped in special agent robert gibbs these officers did not act in good faith under any meaning of the word they intentionally misled the magistrate under every meaning of that word they are trying to game the system in the same way that the supreme court warned against in the leon in hearing in we look to the face of the affidavit and the evidence supporting that do not i disagree i think you look at what the affiant really disagreement i mean that's not enough what do the cases say about that cases say you look at can't lie to a judge that's an important difference and we don't exclude it even if you do but we don't give you the benefit of the good faith exception and then there are allies i guess if i could draw an analogy i st grade son if he came to me and said i made an a on my math test can i have some sugar cereal today and i say yes only to later find out he failed every other one of his tests well that omission would completely change the context of my decision in that case in here if the officer said we want to search every aspect of the phone including deleted items or text messages and for images we want to do so because we're worried about drugs that he had and were worried about child pornography that would indicate to the magistrate what the images were really being used for we call into question the credibility of the officer here if the officer had included that information but they're still in the title to that information and then they're trying to the information that is a set set out in the affidavit support in the warrant they're entitled to that information on that now i mean at least they're only rhythm they're only entitled to it if the affidavit has sufficient information such that the magistrate could make an independent assessment of probable cause rather than what is right laid out in the in the aff and that is i mean you're right ma'am it for this moment we're not attacking the sufficiency of the affidavit itself with respect to drugs but assuming that it assumed that it stated probable cause with respect to the drugs then that's the end of the case it's not the end of the case and there's not probable cause for the drugs either and sent some in there soon this probable cause drugs still doesn't i'm sorry your honor i spoke over you i hope and i spoke of the use of that was only because of the technology your honor i'm sorry but it still doesn't get you to the images there's not a single case based on just training and experience plus cellphones plus user quality drugs that you get to get to everything in the phone the government's making the argument that we didn't exceed the scope of the search warrant you couldn't exceed the scope of the search warrant it includes a computerized deep dive of deleted material on the phone every aspect of this person's life was being subjected to review by the government because of the user quantities of drugs and i think that puts us in a frightening