three i want to emphasize a point that i hope hasn't been lost in the briefing which is that the test that applies here is a simple reasonable means test of the sort the courts apply every day and it asked first whether the delay in bringing this allegation is reasonable and second straightforward it's that if it weren't for this delay if it weren't for the piecemeal charges in which the piecemeal fashion in which these charges proceeded mr is right he would never have had an obligation to register as a sex offender or to be registered rather  the reason he had to be register as a sex offender is because while the first round of charges against him was pending he was in prison for more than thirty days and those charges weren't ultimately proven but still when he got out he had to reregister as a sex offender under california law an piecemeal fashion in which these charges were brought and more than that the specific way the government elicited a confession from him was by telling him you've already been charged once that's a done deal how can you confess to something that's already a done deal so that peace will charges here to making sure he was in that room also allowed the government to deceptively elicit that confession from him by telling him essentially that the charges against him are over if it weren't for the first round of charges the government would have never had him in that room and it would have never been able to assure him that he could safely confess because he had already been charged once and so that's our prejudice argument it's a combination of enabling the interrogation and enabling the specific deceptive tactic that the government used to elicit his confession arrow so is there any the probation officer had actual knowledge that that's true that in those cases the probation office had actual knowledge but they don't say that that's an prerequisite for due process you know the authority for the should have known standard that you personally here inquiry notice or strong circumstantial evidence is enough to give rise to a due process claim there are cases of a different fact patterns and there isn't one exactly on point here isn't it true that the probation officer should have known it was of things and a lot of cases  before that's right your honor and here what happened before is that they had very strong circumstantial evidence that they failed to follow up on and again they're not obligated to follow up on all circumstantial evidence they have and it might be one thing to say we felt investigated and then a new witness came forward later we failed to investigate and then some new evidence came across my desk by innocent means it's another thing to say we failed to investigate and then we took an abortive first charge on what we thought were easier to prove allegations and then we imprison you for six months while that was pending and then when you got out we use the first charge and there are the consequences of the first judge to orchestrate a very high pressure back room interrogation and that's a very different so i don't think often or even in most cases a failure to investigate will have serious due process consequences if the test here is a reasonable missteps and failure to investigate is one factor that plays into reasonable brief any other approach would effectively reward the probation office for its lack of diligence here and it would say are true aren't you putting the burden to comply with the terms and conditions supervised release house to rest on the  that's correct you're putting the focus on whether or not the probation office or the district attorney or whoever or the state's attorney appropriately investigated the  ignore allegations of which it has strong circumstantial evidence and then proceed in a piecemeal fashion and then later when its initial charges fail say ok now we're going to come back at you over the same set of events and reopen our investigation i don't see how that's inc in which that happened basically had two different charges on the same incident i'm not aware of any your honor i'm coming out either way i'm i'd like to quickly unless there are further assume you would include that if they had any evidence that he had told her that he wanted to look at something about public storage and that she had just push the buttons that that would be using it even if he wasn't doing it pushing yes would say that in her reply brief is that that would be using the phone in directly through her it would still be using the phone but there's no evidence of that here and in fact the evidence is that the storage facility was for her benefit she was to start her belongings and she had just shared in this screen why just why just what's on the screen matter because i think it's different depending what's on the screen it can support an inference that he asked her to pull it up so if she had shown him if he had asked her to pull it up that would be clearly a violation that's why why why if he is holding the phone and looking at it even if she if you didn't ask her to pull up that screen because the condition here requires  use the phone i mean give examples in our brief that the supreme court defines use of active employment and we point out that if i but he's looking he's looking at a screen that's right but if judge burrows and showed you a vacation picture on her phone and you just looked at the vacation picture and gave it back to her no one i mean most english speakers would not say use the phone in that circumstance as you just looked at it well it's not just it's not just a phone i mean to say that i've used the phone when i when i was growing up because that can i use your phone you had to pick up a handset a dial something today this is a small computer it's not just a phone and so now could it was he possessing and using a small handheld computer very difficult to say that he wasn't if he's looking at pictures of something on that on that phone but if he's looking at it and he's using it but if he's not holding it you're i think your best argument is he's not possessing it i rebooked with the thing that he's got it in his hand and he's looking at the screen respectfully and i think most english speakers would not say he's content correct it does not but the content could support in inferences that he had played some active role in what the condition that suggests that he's got to play some active role in calling it up it's the word years which requires active employment under supreme court precedent and as a matter of convention and every day spoken english that that's what required that he had some role in manipulating the phone or actively using it rather than just looking at it and it's time this happened we can see many peculiar and not to be encouraged i would think i know well and also leading to the interrogation which in which there was at least some misrepresentations that went on can there's this very funny disagreement between us whether the door was locked or not which i don't understand i have no record of either says or doesn't say that the door was locked but apparently you disagree about that well our position is the record is unclear and that i mean our brief we argued that the inference from the facts would point to the fact that the door was unlocked i think the only thing in the record that either of us can point to is the transcript the recording of the interview with different tact of mcpartland and the only reference to the door and being locked is when they first approached the door and she's fiddling with it and having trouble unlocking it and then at the end of that interview where she says you're free to go i need to lock up we infer from that that the door wasn't walk during the interview but that the fact of the matter is there is nothing conclusive on the record and did the defense have the opportunity to cross examine detective mcpartland at the suppression hearing and failed to do so then i must say that i thought the notion that he was freed only was extremely questionable said he would think he was  probation or supervised release person he at least had an obligation to talk to his probation officer emae well of thought he had an obligation to talk to the police person he was there to register it was part of his registration  effort so the notion that he thought he could just walk out when he had at least two sets of obligations things for thrilling seems extremely unlikely and does that matter i don't think it does first of all we're not talking about a self incrimination analysis or not i understand that is why i'm asking as a matter so in our view the whole issue of the interview is really a non issue because it didn't lead to criminal charges it's you know it wasn't  under that fifth amendment rubric he was and even if it did he you know we think he was free to leave his father was waiting outside in the car and as the distro was about fifteen or twenty minutes ok and as the district found you know this is a sophisticated criminal here young sophisticated he could easily have said to detective mcpartland you know i'm i'm here tonight to register i don't really want to answer questions about what happened in december and he was free to do that and he didn't do that so if i can address the court's first sort of concern about the two incidents we would argue an instant yes sorry one incident two sets of charges the reason why the first of all our contention is the probation officer did investigate the first incident after he was informed by the psychiatrist of what the defendant had shown the young young child in the waiting room he talked to the psychiatrist and got the psychiatrist you know the report then he went and he did interview the defendant and asked the defendant the defendant lied to him and you know denied any knowledge of these pictures on his d s and furthermore he told the probation officer that he could find it to guess at the defendant's home the probation officer went to the home it wasn't there he asked the defendant to bring the device to him the next day and when he looked at the device there was no child pornography on it it did go through a forensic examination at that time and of course as we now know there was no child pornography on it because the defendant was the one who destroyed it so if there is delay in bringing that later charge i would contend that it was in part at least the defendant's own a vase of efforts in lying to probation officers monson and in destroying the evidence and so at the time knowing all that and probably surmising that the defendant was my probation officer brought the charge that could be supported by the evidence or which  the use one matter to the ultimate to the sentence it's you know it's hard to know i think if you look at the record of the sensory carefully the judge was much more concerned  about the use of the computer in the psychiatrist's office than the other incident but both and incidents are really the same violation of supervised release and i think taken together because they're both possessing and using a computer related device without informing the probation officer that's the condition that was violated and so you know violating twice rather than once there is a little additional aggravation i think that adds you know possibly to  so i think both of them do matter and that's what you want is for us to use issues yes i think i think that the ordinary natural meaning of the word use is exactly what the defendant did here he was the cell phone and that was a photograph and he was that's using that and i mean that was fortunate is that it was on a screen it could have been a piece of paper right it could have been anything right right so in terms of what the point of this whole  restriction was it wasn't to absorb some information it was to use a device right now why is he why was he using the device as opposed to just reading something i think you something is using the device and i think the whole idea of this restriction is because of his you know past criminal history but if he had no control over the access points of this thing and didn't in fact search for anything or directing body else to search for anything i mean that's the concern right it's not that he's going to read something that he could have read in a billboard are on our newspaper it just seems to have nothing to do with the concerns that underlay this restriction no no because i disagree because the concern that underlies the restriction this is supervise release it's all about complying with the probation officers or don't apologize or just so it's has nothing to do with any substance it's just if you would tell you do it you have to do it he's now you're saying well the point is he's the point is the conduct that led to this violation was using a computer related device without letting the probation officer know that he was using it and granted this was a short period of time he was using it but it's still you know within the spirit and the letter of the supervisor at least condition that he was using that phone he was holding onto it he was absorbing the information and i have no ability to do to use it in the sense that women usually say use it any access anything that wasn't already on it i wouldn't say that he couldn't have he didn't he didn't but he could have as well evidence there is no evidence  he thora with regard to his friend's permission to do and that's true that's true well there for all he had permission to do is far as the record shows his look at something but looking at something is using it i mean he's using the device in order to absorb the information that's on the screen he's not just holding onto a you know the friend says would you hold my phone while use the restroom he's doing more than just holding it he's actively employing it by looking at some content absorbing the content and i just think in normal usage that that is using the phone and saying that when you look and read something you're using the interrogation troubling because she did play on the fact that she told him that he had nothing to lose and that was true as it turned out he did have something lives but we sort of allow things like that in confessions if we were writing a paper what would we say was unreasonable is a common it's the piecemeal of the piecemeal dilatory charging tactics in this case which encompassed in a range of abusive police practices pacifically that the reality is that defendants will often and in fact in most cases deny responsibility for their actions the question this case presents is how far the government can go when they do it more than that's true your honor and that that happens