three cases i think you're all familiar with our timing system but since we don't have the luxury of having visible our lighting system we're going to ask our courtroom session  to please alert you when you have two minutes left and when your time has expired we ask that you please stick to the time limit of course if we have questions that take you over the time we do want you to answer those questions or else we would be asking them so  within those boundaries i just wanted to make sure everybody was aware of how it was proceeding today all right we will begin with united states of america versus pendergraph and we'll hear st from attorney webster and relation to a separate incident that was not related to the charges here he was not a subject until possibly two weeks later on about march rd two thousand and seventeen the government here happened in this case and without evidence as to the relevant facts the court should behave mr pendergraph with conviction even if you have credence to the government statement occur for eleven months so that you cannot say that the government wasn't active pursuit of the leads at that point the next link in the chain was interview of course that came after coming later that same night and those are the size types of active pursuit the relevant part of watkins though is not necessarily the factual because these are very exact intensive cases but that in my mind it's the distinction that walk satterfield situation where there's some illegality with regard to warrant and how warrant cases seem to be different that's that to me is the is the relevant part of walk ins for our discussion is this a satterfield case or is this a johnson case because for the moment that i agree with you that setterfield requires that the warrant they would have needed to get the account have already and i was independently find all kind of need to have already been in the works prior to  google data was introduced only with respect to the polo robbery and the discount robbery and the best wings robbery and with respect to the low end discount th evidence is that is really overwhelming and and also very strong with respect the best link so that adds to judge luck's question so violation the government does is the issue is not just whether or not that the evidence is harmless the issue is whether or not it was harmless beyond a reasonable doubt so the court has held that that means that there must be no reasonable possibility that the unconstitutional government's brief why this is more in line with the johnson analysis of active pursuit and the st way that this case is the single from satterfield your honour's is that this is a different kind of search satterfield involved in lawful search of a house about satterfield in the kind of search that it was is that the court stressed there that the rule they were announcing was especially sound when a case involved a search warrant that was constitutionally required here the data to get a search warrant that's what that means in other words what they're saying is unlike the situation of john onsen and specifically watkins those were awards exception cases in other words that it wasn't about needing a warrant because they  under an exception he satterfield you need a warrant to search the house and here you needed a warrant the government needed a warrant in order to search the google data i'm just i'm having a hard time understanding how this doesn't fall under the carve was detailed in the johnson case you know the johnson case there was no search warrant there was no evidence that the officer in that case ever planned or thought about getting a search warrant and the court in distinguishing satterfield could have just stopped there but it didn't the johnson court went on to johnson line of cases and the satterfield one cases i'm interested in one other issue and that's the issue of evidence this is very odd how this was litigated through an unlimited motion with the government stating that because it's a limited we don't need to give evidence and then proffers how how do we how do we make sense of all of that how do we make sense of the fact that there truly is no evidence it really was just a proffer of from the government that the court accepted well i would point to several things  honor including as you've already noted the way that this was raised yes the government in a footnote in responding to the motion lemony did know that it didn't believe a search warrant was necessary and that was because it was i recognize it was citing to proffer that would make simply that was argument on the legal issue and so the court could accept the government's proffer is that the way that we should look at it yes your honor i think so because that's that's what that's what the record shows the district court did there was no there was no contrary position on any of the facts that the government asserted and of course this court's reviewing the facts in light most favorable to the government but that's what the district court did and so to now sort of look back and say well maybe there should have been a maybe there should have been but the district court was not airing in taking facts that nobody had contested everybody seemed to agree on and yes nobody asked for evidence year hearing can you address the chapman standard with regard to that the best we if so the era was harmful but the piece that's missing here is of course unless the other evidence of guilt was so overwhelming that the defendant suffered no prejudice from the admitted evidence so with that additional piece of analysis and turning to the best wings robbery your honor so and as judge anderson noted we've got the three robberies with respect to the google geo location and with best swing specifically your honor i'd say the strongest piece of evidence that would make the google geo location evidence harmless is the ballistics we've got extremely strong evidence on really all three of these robberies they're not even contesting polos and discount grocery and with best wings we've got the list of sure honors ballistics timing the gun and the images from discount grocery especially with best wings the way mr pendergraph covered himself his lower half of his face and the top portion of his hair was almost identical there are really good still shots and images from both discount grocery and best wings that the jury considered and found that those were the same property help with us i want to shift to a different a different area that wasn't brought  you're just looking if you're just looking at the bonita coin laundry standing by itself and not comparing it to any of the other robberies i mean i understand your honor's question but that would be in direct contravent bowers holding that was requires that there be an m and that ours was really strong imo evidence i mean the defendant there broke the door in the exact same way for every single one case and powers but there were also differences that the court noted yes that was very strong m o evidence of how that defendant broke broke each door but i would say our m o evidence is you know  going robbing around the same time of night around closing time for these businesses or you know late at night robbing small sort of mom and pop shops know they're not all fast food restaurants like they were and bower s but we have consistent themes there between them the time of the robberies the small mom and pop kind of little little businesses and we have a you know the same kind of body type  you had different clothing and and similar to ours you know sometimes there's there's one robber there's two robbers there's three robbers in some of these robberies but consist of between them all was mr pendergraph the tall athletic buil  just looking at the overlapping evidence between the robberies you know that that that was consistent with a shirt worn underneath the distinctive sure in the china star robbery i have a question for you and look for me when i was looking at the photos that a red shirt was worn under something or at the out of every one of the robberies with the possible exception of one and that one the color of the i guess the color from the bill isn't really clear i don't know if you have and if there was any evidence in the record to indicate clothing he was robbery yes your honor yes your honor that that no not there was nothing there was no testimony specifically about what the defendant was wearing there's just you know some very good up close still shots but i do see the the color of that video makes it a little unclear i mean you can tell you can tell something like a dark blue shirt that he's wearing on top but it's it's difficult it's difficult to say and there was no testimony on what color that that sort of undershirt was court to really consider and judge luck you know you've directed me in some ways with the satterfield johnson issue but you know i'm going back to that because i'm thinking of other cases in the future with investigations like this involving you know not really a linear timeframe and certainly not a short discrete investigation to traffic stop a search of the house but complicated multi step investigation involving  cooperators and just different things and just ask the court to consider you know the impact of this could have been a case where we could have gotten the google account from say mr gelb ridge or miss forrest at some point in the investigation would have never needed that search warrant to after there'd been a violation of the defendant's rights and the requirement of a home be before the search take place so i mean with that i would ask your honour's to please affirm the convictions of pendergrast argued that the government have the burden of proof and they chose not to present any facts to meet it so at this point when the when mr pendergraph identified the issue and put their government wasn't even with respect to the the the ammunition and the gun that would have cycled through even if they didn't find the gun isn't it the case that for example in post hoc where robberies where they found one of the casings that had the distinctive markings on it that was where one of the robbers wore the distinct design on the black shirt which was recovered from from mr pounder grass residence and appeared to be the same shirt that was also worn in the china star robbery and he admitted it