court i want to start with an observation from this a lot of the in case about the nature of rule twelve and that's that it serves an important social policy and not a narrow finnicky procedural required it was clear from the no member of this panel would ever call a procedural rule finicky i don't dispute that but what mr sikes did from the very beginning when he was held in to federal court was tell the district court i think my rights were violated i think that this evidence is the fruit of the poisonous tree and violate the fourth amendment i want him i want to hearing on this motion to suppress now his lawyer disagreed with course it was not a lawyer that he chose as an indigent defendant but from the very beginning he was asserting this claim and so that makes it different from a lot of cases where maybe you only notice the fourth amendment violation on appeal you know that after trial it's something to it for the purposes of de lay but you know here's the here's the problem i can understand why you're making this argument because it makes it seem less than timely when the motion finally does come in but there are two rules which at least in and of themselves i'm sure you would have no quarrel with one is that when somebody is represented then that person needs to communicate with the court through counsel and to counsel have the responsibility to assess arguments and not make arguments that seem should be morally based and you know lawyers do that all the time you see it in criminal cases and so that somebody wants to say i want this alibi witness or somebody wants a motion to suppress somebody wants whatever they want you know and a responsible lawyer is going to say sometimes you know i really can't stand up there in front of the court into that now are they always right probably not you know maybe some of the time it would have gone somewhere but if we start from the proposition that that's what these lawyers are doing they're assessing all of the facts and then there's actually a fairly long period in some months where the last lawyer comes in before this motion gets filed and even that might justify the judge's decision right so i guess there are three responses i'd make to that discussion the first is that recently what the supreme court has been saying at least affirming sort of what the law is is when you have appointed counsel certainly they're acting as your agent but only to the extent that they are effectively represent when once you get into the realm of ineffective representation the supreme court has excused things like procedural for people who are represented by ineffective counsel the second thing is we have a lawyer who does  sort of maybe this is a best practices argument that just doesn't get around the rule but in the end what this is going to come down to is do we hear this motion in a timely manner when an attorney says this is  frivolous motion before trial so that we don't have to redo a trial if there is an error discovered at the end at a time that's close to the events of the events are still fresh or do we say this is untime it's motion perhaps but it it's just too late we go through trial we go through an appeal and then it's a twenty to fifty five question because ultimately it's going to be was that boy or ineffective or just  so the other thing that i mean this is sort of a legal question here in a fashion question so they get this tip you know that some kids are in this area and you're an abandoned house they go there they see an adult man and there's this exchange  he says i'm taking pictures of the kids eventually there's a credibility finding eventually the court finds that in fact the officer does receive so exist permission to look at the photos  don't we need to approach this record on that basis because of course the game's up as soon as that happens he sees pictures that are troublesome enough that he certainly can go forward maybe i wouldn't concede that last point but what i would say is there are differences between the sworn testimony at trial and what you would get in an evidentiary hearing on a motion to suppress but because we look at this how can we regard this issue about whether he got permission whether the officer got permission to review the phone as unresolved well because mr sikes never had the opportunity to testify as to his version of the events because at  trial whether this was an illegal arrest really makes no difference if you testifies and i didn't give consent the vet doesn't make a difference just for the jury's determination and then he waived his right against self  incrimination whereas i had an evidentiary hearing it wouldn't be that ultimate issue in front of the jury he wouldn't have to wait right to stay silent at the jury trial he could testify and say you know this is actually what happened and the district court would be able to make that credibility mean and i'm just saying that's the nature of the trial when and we rely on the outcome of the trial even though it's only one side so to speak right but our contention isn't about the trial it's that we should have had a hearing before the trial so that the judge you please the court you're in the question here is whether or not it was good cause shown for the whether the district court struck in the defendant's motion as unkindly the government's position is that it was not good permission but temporarily to real then the time for filing pretrial motions so do you think you had he simultaneously with that motion to continue signal to the court that he was at least asking permission to review the pretrial motions that we'd have a different situation your honor i think so because he was a new attorney coming in i think i just just did court would have considered the fact that he was a new attorney and he could have as your honor pointed out earlier a different view than what thousands much unfairly and your honor and he doesn't attempt to say why it was not earlier he simply says counsel believes the motion to be in america for us and in the interests of justice that's not good cause shown for why it was not filed  earlier or why mr getting a never first even as and this reply to the government's response to his motion for leave to file he never offers any kind of excuse as to why he didn't file any kind of request to open  the officer initiates a conversation with suggs who had said you get to talk to people so it says he's taking pictures of kids in different settings for his photography business at that moment do you think  into the camera somehow but yes yours are certainly easily troublesome enough to support yes sure and that would be the government's position that that that the kind that he looked at the pictures and saw the content of the  your honor i do just want to push back a little bit on the pictures these were not new pictures i just want to make sure that the court is clear on that you know i understand that there are pictures of kids with their pants pulled down but there boxers are still on that it's still little well more than a little sketch but i don't know but i don't know if that gives the officers probable cause for disorderly conduct or for production or possession of child pornography i'm not sure matter  you know and we may have some questions about this that warrant further investigation to the point is the voice indicated they got paid that was when they initially talked with the officers right because that would be very troubling to me too if i saw a man who was not related to a couple of boy on a police officer or see a man they say paid us twenty bucks to take our pictures i'm still not sure what the probable causes of so i think there's certainly there's reasonable think if you want to get to the level of search and seizure you need probable cause and i don't think this gets there ok thank you very much all right thank you thanks to both counsel will take the case under advisement