prior to trial with respect to the st argument and suppression issue as this quarter is aware authorities were called to mr williams residence as a result of a burglary that may or may not have been in progress  at that point i think the evidence was a little bit unclear however the police were definitely called to the residence the the issue however is not in the entry into the residence because obviously however once inside the police were able to quickly determine that this was more than just the burglary there were drugs there was drug evidence and other materials that were in plain view almost immediately upon going into the residence however shortly after and that the testimony is debatable as to whether when the police believe the residence was clear or not however the protected s lasted not just moments but long enough to do an entire thorough search of the entire house including the basement the up stairs the st floor the kitchen cabinets moving dressers opening microwaves all of these things happen during the guise of a protective suite and clearly the police have the authority to go into a residence when it's been burglarized and to make sure they are safe they have a tough job however based on the testimony in the record before us it was fairly clear that this turned into a drug investigation and then once the protective sweep was over they didn't leave and then secure warrants to come find the him the evidence that they had seen in plain view and then to conduct a further search instead they stayed at the residence for a long period while more police came so that they could in the in the testimony the officers to expand the burglary slash drug investigation you the well there was one place in the basement where there was drugs found in the wall busy i guess cording to the officers during the protective sweep they went down in the basement and they noticed some plastic from a bag or tooting out of a hole and then they pulled that bag and determined that it was probably a controlled substance in that instance it's pretty clear that there  that was located in a space where an individual can be found but more importantly i think it was on that particular point was there a white powder that was visible to the officers added i can't say whether the officers st noted the white powder  in the bag at the same time but i know that the testimony is they found the bag he saw a bag or trooping when he pulled the bag from the wall he found white powder that it was containing white powder and he assumed that that was a controlled substance and it was because if there's or if there is white powder obviously then the plainview exception would still apply i would think even though it's in the wall i mean if you see for example i'm gonna hang out from the from the top of the wall or out of the top of the ceiling or something like that to be fair your honor so i don't recall if the testimony was exactly he saw the white powder in the plastic bag contemporaneously or my recollection was he saw a plastic bag hold it from that from the wall and then noticed that there was a white pottery substance so what authority do you have that says that the officers can't stay after having seen in plain view incriminating evidence well i i would have to bring that up  i believe is the webster case i didn't write down but i will address that in my rebuttal the answer is there is authority that says certainly you have the authority to seize or note what is in plain view and i think officers did that what the officer believed was in plain view during his investigation loaded into a cardboard box or shoe box i think it was and put it on top of a stack of tires somewhere in the residence and then for the later investigating officers to come back and see us once a warrant had been obtained i think that was appropriate it's the sweep in the scope of the search that was inappropriate and it gives rise to  not being able to completely believe everything that the officer stated because a lot of what they stated in terms of of how the search went down was refuted either by or contradict i shouldn't say refuted was contradicted by some video evidence and then subsequent testimony during the trial don't we defer to the district court in the sense of credibility and terminations i mean if you're suggesting the officers can't be bullied well i'm not saying that's the argument that were raised and i think that that's part of the problem in the way that the search was conducted it gives rise to a it gives rise to a belief or belief especially on the defense side what else happened here what else did occur in this case now that the court certainly has the ability to to make the credibility of the terminations like and say that that doesn't exist that's the court's job normally when police have found a contraband they apply for a warrant to search of the places that may contain more contraband and generally speaking the officers can stay on the scene to freeze the scene to make sure nobody else comes into the apartment or or the house and removes that the remaining contraband was not at all let me get it here as there is and i guess my nd question is would that particular doctrine apply here i would say that it doesn't apply here  you're right that the police have a duty in fact to secure the premises certainly to make sure that the evidence that they are remains proceeding and i understand the reason why that exists i think in this instance however they had secured the residen rather than then wait even waiting outside the residence would have maintained the residence for security purposes rather than doing that they say they sat around in the living room watch know i'm not sure if they searched anything else or continued to look around the house but it's just human nature and that's part of the reason we have these rules in place if i was an investigating officer are going to start looking for everything once i got in there i understand why but i think that's the reason why you with these rules are in place so that human nature doesn't take over to the point where the th amendment has been violated and i would suggest that that's happened here but there's no evidence you can point to specifically that was found because they remain law there is no evidence that i can specifically point to with the exception of the the drugs that were found in the basement i would think that's the most obvious even though in the interim look and it inevitable discovery well and that leads to whether or not know put in a situation where the officers conduct in conducting the search and then it's important that the d v r evidence and i neglect point that out i think you're on the d v r evidence was critically important that evidence was used taken from the residence put in an officer's locker for three or four days before even getting that warrant and then delivered to the crime lab and so when you have this type of conduct in the investigation it so it gives rise to the point where you're saying there's a bad fat faith conduct on the part of the officers in actually seizing some of this evidence rather than just simply stating the state staying in the residence to make sure it was  cure i got to tell you that that that issue probably concerns me the most of all of the issues but maybe not for the reasons you argued in your brief i think that the destruction of the evidence creates is specially when you're when you're when there's some question surrounding the search presumably that would have shown and it did show the ones that were available did show them rifling through drawers and things like that and so but i don't see you making that argument i don't i see you making the argument there could have been exculpatory evidence that showed he didn't do the drug deals and cetera but not the argument that they don't want to show on the search was illegal well it's difficult to make that argument because how can we make it without having the facts there certainly the evidence was manipulated i don't want to say they destroyed the d v r evidence represented the poor they made everything available to the defense that was on the d v r well what we do know is this it's difficult to to i think it's difficult for the government to make that representation just as as it is difficult for me to make the representation that i know there's something missing from it what we do know is the copy that it was delivered to the defense counsel was it was not pristine it was a clone copy and they hash values were different now whether or not every moment of footage on that video was d v r was was truly there or not i could make that argument without counsel having gone to look at the complete  aren't we in la la land just guessed that that maybe something's missing well and i think that's part of the problem with the chain of custody when you roll this all up together it can it presents a story there's a search there's a long link the search under the guise of a protective sweep there's evidence that's taken from the residence including the d v r evidence that's that and viewed right there by the way before even having a warrant i guess it was turned on at that point in the residen and then once the officer had secured the d v r evidence he took it to his his his locker at the police station where it's that purportedly for several base then a warrant was obtained to actually see search the r evidence at which time it was fired into the forensic lab and so we're stuck with a problem where there's a protective sweep that appears to be objective lee well objectively it's questionable whether or not they extended that suite too long to make it into a violation of the th amendment coupled with the evidence seized from the residence if the government used any of the d v r evidence in their case and she was certainly it was play during the entire trial that was part of the evidence with the officers kind of narrating what they believe they witnessed going on and it wasn't just from the burglary it was evidence of it was on tw and you're saying the d v r was seized prior to the painting of the search warrant that's correct it was taken from the residence it was actually in the in the officers locker for want to say at least three days before was issued well that was a search warrant for the search of the d v r that's correct about a search warrant for the search of the house the search warrant for the search of the house was issues previous to that certainly but they took it they took it as the a v r taken pursuant to that thank you on before i finish i just want to touch on i think what is a very important issue with respect to the defendant's request to conduct his own defense real simply put  the the request i see my time is is running out actually i'm going to want you to i'll give you a couple minutes on the bottle thank you your honor very simply put mr williams asked that he represent himself he was having difficulties with his attorneys i understand the judge's frustration with mr williams however of the the court's reason for denying him the ability to defend him so was was simply not accurate he was not trying to delay the proceedings in light of the fact that he had gone through five lawyer that really isn't reasonable to conclude that this was for delay i don't think so and here's why he made the request contemporaneously or after also waiving his right to a jury trial he's not trying to delay anything he just isn't satisfied with his attorneys and he wanted to present his own defense thank you very much  doesn't have to be plainly incriminating the honor i would suggest it in reasonable probability i would suggest that it is your honor that it meets that standard well your honor when they were conducting a protective sweep they observed throughout the house  obviously you not only have evidence of a burglary so you want to preserve that evidence but also you have evidence of drug trafficking there are drugs and guns and incriminating had no i think in fact the court can can infer that a drug trafficker the reason that they have a surveillance system is to to protect their house from being invaded in practice this particular defendant admitted to having at least one home invasion and of the testimony was that his house had been robbed twice before in a similar manner they know that this was connected to the surveillance system when they did it because i mean for instance if somebody sees a direct t v d v r obviously that would not be you know incriminating right your honor yes they did or at least there were wires that were connected from the d v r to cameras in various locations in the house one  in the living room i believe and one in the dining room it also is connected to cameras that were videoing both the outside of the residence where that camera was actually placed it's hard to tell from the video footage but also r bothers me and maybe you can make me feel better and it's all along the way you seize the d v r without the warrant or the government that you personally obviously without a warrant and then it sits in a locker for several days you finally warrant and then you have the hashtags end up changing you know changing and or whatever they're called but they and so and there's evidence that they that the officers were rifling through the drawers and exceeding the scope of a protective suite i know and nothing was found but all of this leads me to believe this was a little fishy here on our cash start from the back end of your of your question as far as the rifling through the doors not only testimony in that regard was that a microwave was open and  illegal and that so they they could not have entered the resident there were no exit jetstar constantin they concede today that it was legal correct however if you look at the reply brief in this case they actually call it an illegal entry and they suggest that in fact maybe there incorrect and the district court to address the credibility determination and the district court was in the best position to make that determination and this will go back to your question regarding the defense witness and the government's expert on the  on the d v r footage and what had and had not been changed and those credibility determinations are almost never as this court has held clear air for that very reason because they are in the better position to make that determination as far as the d v r there's a lot to clear here and i will say that the defense counsel during those two hearings just prior to the trial did a good job or at least attempted to really muddy the waters on that issue but the actual evidence in fact if you look at the defense witnesses testimony they say i have he says i have no evidence he admits i have no evidence that in the video so at age was deleted manipulated or altered that is the actual evidence so here's what happened the d v r this was in the evening i believe on the th the d v r was seized it was taken the police officer prettiness locker until you is able to obtain a search warrant because he testified we do not take it to the cyber crimes unit until we have a search warrant once he obtains a search warrant i believe it he received it on the rd the defense  the government expert here actually copied it and here examined it he received it on the rd of june so i believe that's eight days that had expired when he received it he made at that time pristine copy of the hard drive once he made a pristine copy of the hard drive he then looked at the logs on a hard drive and a log showed that from the time that d v r had been unplugged in the defendant's residence in til the time original hard drive it showed that had not been accessed so from that time period there could not have been any police or united states attorney's office because we were accused as well any manipulation of what so i would think the thing that kind of concerns me and i don't think i don't think the  opposing counsel raises the right claim but the thing that concerns me is is the instance in which the d v r sees without a warrant it sits in somebodies locker maybe the officers know that they exceeded the scope of a protective suite maybe they did something a little fishy and the officers are corrupt and so they delete part of the d v r and and and cover i'm not suggesting that happened here and but the rule we're going to write in the opinion presumably is going to cover that situation as well and so i want to be sure that united states attorney on this case in the very beginning i may have been the st actually i think was the nd lawyer to represent the defendant he told him look we don't know what happened the video that is missing is video of the burglars actually inside that residents that we have video of the burglars approaching and entering the residence or you can see them stepping climbing or stepping through the front door but you don't have video of them inside the residence we don't know why  cannot and it the evidence proved it cannot be attributed to the united states or the government the police officers either what we do have though is all of the video footage of the police officers inside the residence so that's how this this actually happened where they had deleted evidence i'm not so sure would look all that much different than the record before so you may well be right i'm just trying to i'm trying to be prophylactic you're and figure out what rule makes sense to protect from the instance in which it may look like  these allegations he gave them he gave the defense opportunities to prove that up show me give me evidence of police misconduct and he had two hearings on that and the st hearing he made credibility findings and in fact if you look at the record i think he was a little frustrated because it was again it was just speculation there was no evidence in fact the defense witness ahead i have no evidence that any video has been deleted at that defendant had instructed his witness not to look at the original hard drive so that's something i need to address about the united states withholding or delaying disclosure of that but he's the one that told the defendant's defense witness don't go look at the original r the judge was frustrated by that said i want to push the trial again you've got three days to go look at it write me another report and we'll come back here and talk about it they had yet another hearing and again at the conclusion of that hearing were the a defense witness testified again and the government put on detective bain their expert the judge made the finding that there are still no evidence of any deletion manipulation corruption on the part of the united states office or the police department with respect to the hash values it's really that's it's a great argument for the defense to make because it makes it look like something has been altered right but when you look at detective brains and even the defense witness agree to this when you when you look at the testimony about hash values and i'm not a computer person but i do understand this any time you turn on a device a hard drive has an overall hash value an individual files have their own if you turn on a device a hard drive if you access it in any way and you turn it on it's going to change that hash value and we know in this case that the hard drive west turn on in fact it was encouragingly right at the scene that's when it was turned on no ok that's incorrect actually it was already on they did not turn on the hard right they didn't do anything to the hard drive instead of unplug it now the defense tried to argue that somebody has a remote control in their hand in a still photograph and that they were accessing it the testimony about that was they th united states put on a rebuttal witness and the testimony was actually we tried to turn on we turn on the t v and it was a basketball game that was on and fact we couldn't we didn't know how to access the d v r so they they actually did not and  the government's expert said it was not it had not been manipulated now the hat what that what's important to note is the hash values for each of the video files had not changed in the defense witness admitted that that for each video file on that hard drive the hash values remain the same from the persisting copy in every single copy that was made for the defense so yes the overall h almost it's almost never challenge us as far as the unite i want to address this is far to the united states withholding or delaying  letters he filed with the court so they are part of the record and he tells the defense here's what i'm handing over here's the d v r footage here's more of the d v r for it because we've got footage going months you know for three months prior to this of drug trafficking if you want to come in inspect it it is available to you now the problem with mr sams was he was the th attorney and so he was not privy to all of the conversations prior to that that had been recorded during the status conferences there are status conferences where the united states prior to mr simms representing him or the united states says hey we've told the defense that they can come look at the hard drive i believe mr was going to do that but his expert said that she couldn't  to get a new expert the fact that they didn't look at their original hard drive in till that week before trial had nothing to do with the united states and everything to do with the with the defendant himself and the fact that he had five challenge was not that it was not obviously incriminating the challenge was they shouldn't have been in the house that none of the evidence was observed in plain view they the other evidence was challenge on different grounds in other words they should not have moved  address or when they were doing their protective sweep in that was of course denied by by the magistrate court that it was not on the ground that you raised now no it was not challenge give you a couple minutes on rebuttal excuse me thank you your honor well with respect to the just address a few of the government's points real quickly certainly on that we using that exact language wrong and there was a motion to suppress filed the motion to suppress included it was more like a shotgun type motion it was it was asking that everything be suppressed didn't afraid the raise the arguments that were available on the record below but however you now know i don't want to that's not want to well if we're going to parse it into a very specific pigeonhole yet that's not exactly what i've raised assuming however this was they were specific was a request was made later on in the into the case in the pretrial stages i believe that the st copy that was made available clone copy that was made available to the defense s expert at the time was not a copy that could be viewed by the defense it was and is in a format that was not accessible and later they were able to obtain that d v r evidence and certainly the judge had a reason to be aggravated with the delays in the defense and everything else that was going on in the case however that should have had no impact on the defendant's request that he represented himself at this trial because it was clear from the context that it was not made for purposes of the lay at that point and he was ready for trial with that we would ask this court to please vacate mr williams convictions sentences thank you very much very well thank you mr robinson or to appreciate your arguments in briefing the cases submitted and will be decided