f it was initially the prosecution's theory of the case apparently that when my client came to the border it was obvious that she knew that that get that all i thought that the battery when it inspected had been replaced normal battery been replaced by a smaller battery in order to accommodate the methamphetamine which was which had come from victim bill down to mexico to get back yes the the theory initially about as i understood it for the prosecution was that they were going to have a expert to testify that because of that small motorcycle battery it could not make it up to victor bill i had to tell you is making it up to thinks villain element of the crime of importing methamphetamine in the united states well the theory as i understood it was going to be that if you were driving because my client was driving the vehicle and came to the border with a  battery that could not allow the car to drive all the way to victor bill that she would have had to have been told that the methamphetamine was in the vehicle and she would had to stop before she goes to victor ville and and so that's why i had the theory that in fact the client would have to have knowledge that that methamphetamine was hidden in the battery and that was the whole it question in the case did she have knowledge that methamphetamine was hidden in that battery are our testimony our witnesses testimony indicated yes the vehicle could have made it all the way however there was cross examination that brought out the fact that if there if there was some problem that battery would not have allowed that vehicle to get all the way to victory felt my point is however that the prosecution suddenly changed their theory of the case just before the trial and brought in the cell phone test information without a word and while there was no  pretrial motion to suppress that it is correct that six days after the jury verdict rightly did decide the united states supreme court decided you have to have is a little different is a different situation if and warrants aren't required generally for searches at the border generally not but rarely does indicate that it is required for searching of the cell phone data right but do you think the same result would occur if the thirty's had a border of a cell phone because we have a case where a computer was searched at the border and no w required so why wouldn't that thing rationale apply to the sale well i don't know but i believe that the supreme court's statement is what it is and they might be willing to make a reversal of that based upon what you've just indicated but that hasn't been done so it was something that i believe the the trial court should have granted my post trial motion judgment was standing verdict and set aside this and we're asking you to do that this was not  decision or a conviction and it should be reversed for that reason and all the other rulings that related to the issue of whether or not my client could basically come in and for example rebut that sell a very damning cell phone and information it was it was quite extensive you had been a he had been alerted ahead of time that the cell phone information would be  introduced at the trial which you well and that could be stated yes i think so we were alerted that it existed but i did not know that it was going to be their primary theory of the prosecution i thought actually that was going to be this vehicle couldn't could not make it all the way to victor bill and that was the whole emphasis of all the discover what would that proved that it could make it the victim that there was no intent for i don't understand why that would be the government's primary theory in your view well that that's the reason that there wasn't enough gas in it or no because the battery my expert did testify and admitted that in fact the if something happened like that like a person stopped they could not maybe make it all the way to victor bill so that means that the person go would have had to have been told don't stop the vehicle between now and the time you get to victor bill and you deliver the stuff or or wherever you stop wherever it's going to be delivered you had to she had to have been told don't stop and that was the so what did you think the purpose was for the government disclosing the cell phone records in discovery what did she think that was for in rightly the warrant was self those searches could not be of hilda under the exception to the work requirement for quote searches incident to arrest unquote writerly did not address border searches and expressly acknowledge that quote even though the search incident to arrest exception is not applied to cell phones comma other case specific exceptions m still justify a war a search of a ticket or phone unquote so therefore if they can search a phone in other circumstances without a warrant isn't the well acknowledged border search exception one of those and therefore rightly does not apply there could be however that the supreme court did he laid out the what was your feeling  that maybe if the supreme court got another case involving an i phone or a computer in a border search they might follow riley or they might not they could be however i a borders which i don't believe they have any any statement to that effect in there but it is not just the cell phone to information that was particularly harmful it was the fact that for example they allowed the valuation evidence and what was wrong with the well what was wrong with that is the obvious implication being my client is not an unknown courier she's not she has a person she's a person that had to have been told about the value you're not going to have something of such terrific value given to somebody who doesn't even know it's it it's in their vehicle you're not going to entrust a very valuable item to someone who's ignorant about of they might go to visit their clearly having that as as part of their theory and at the time if the time of trial i'm simply saying in my brief that my client is entitle to know all the cases about unknown couriers so that i have to say here is that answer your question yes thank you kelsey you would agree that there was no timely motion to suppress the evidence from the cell phone that is correct and i see it i believe my time was approximately up but it was also very important what the thing about the for the court to court the focus on ruling that if my client basically testified her prior conduct you know penal code five thirty point five would come in and that was devastating because she needed to come in and testify as to or all this somebody's idea doesn't exactly indicate great belief in that person's character doesn't know however this particular penal code doesn't it doesn't mention stolen identification specifically and it doesn't say specifically what my client would have had to have done to done that as simply they made an authorized use of another person's information personal information for any on lawful purpose please the court mark pleasure for the united states brodeur's the appellant described the one thing that this case was about was knowledge and the evidence of defendant's knowledge of importing over three kilograms of methamphetamine was overwhelming defendant on march first two thousand and thirteen was the driver and so occupied and registered owner of the ultimate goal aurora which he had had for about six weeks under the rear seat not in the trunk not under the hood but in the internal compartment of the car was a battery that had been drastically altered the factory battery had been removed really hollowed out and inside it put a really small motorcycle battery as the pictures at supplemental excerpts of record for forty approximately show the what would have been the evidence that the defendant knew that this is occurring the evidence has in each one of these cases judge even more circumstantial but as the court said recently in four as the the circumstantial evidence was overwhelming first the defendant lied at primary she described the officer vargas a reason her primary purpose of going to mexico which he later admitted to agent famine agent because it was a lie then to cover up that lie she said she lied because she had been handcuffed at the time very nervous she had not been handcuffed her life pivot the tax records your honor show a change of life pattern from approximately late december of two thousand and twelve until she was arrested on march first of two thousand and thirteen and i don't understand why that is particularly evidence  of knowledge i mean she didn't have a car before now she has a car if you didn't have a car you couldn't drive to mexico now she has a car so you can drive to mexico i don't know that there was any record evidence that she did or did not have a car previously she did not have this car previously this is the car that she crossed in every week for five weeks until that on march first two thousand and thirteen she was stopped with methamphetamine and then finally your honor the telecommunications date is strongly indicative of drug trafficking numerous calls immediately before during and immediately after she was detained by people with whom the relationship she could not explain and at the telecommunications record i appreciate the spirit of the judge's question sends her hoby call thirty five times that day after she had been detained eddie coworker which the defendant admitted was not in fact a coworker had called her  more than ten times in fact sent he's hubby recall an individual with whom she had only met once and couldn't communicate because they didn't speak the same language called eight times within the two hours after she had been  d that is just the sheer telephone records take into account now the two text messages besieging her to answer within one hour after she had been detained share where are you where are you the evidence in this case is circumstantial but it was unbelievably strong her uncorroborated story of the implausibility of her explanation coupled with her admitted lies add to that the value of the methods that i mean  and position of the methamphetamine in the car made this case overwhelming i said i've read with that because under either abuse of discretion of you or plane or review if the court were to find some error in the proceedings and i think based on the very careful consideration of this case by the district court judge the fact that the issues in this case were well crystallized and fully briefed below i don't think the court will find error but if there a find if you were to find where the defendant can't meet his burden or her burden to show a likelihood that the result would have been changed it certainly cannot show that any error affected substantial rights and can't show never view that and if any of those things were true that these errors rose to a level of miscarriage of justice counsel could we talk about the motion to suppress the evidence from the cell phone  recognizing that the motion to suppress that no timely motion to suppress was how do you think the supreme court's decision in raw meat constituted an exceptional circumstance that would  the burden to file a motion to suppress previously it does not why not for several reasons one is that the fourth amendment didn't change because riley came out but there's really the answer is it comes back to judge day as question which is riley itself internally exams other exemptions other exclusions from the fourth amendment including the border search in this case so really by its very terms didn't apply to this case there's binding ninth circuit precedent i think approximately on point in this case the cell phone was downloaded at the border in a non forensic was it incident to arrest it was at the border that was that incident to arrest was the cell phone  downloaded in conjunction with her arrest in conjunction with but the term incidents were arrest is a specific term of art that doesn't apply to this particular one not because the the search exception being relied upon it being relied suspicion here the defender was the driver registered owner so occupant of the car had just been arrested and was being questioned for importing three kilograms of methamphetamine that i think you previous conviction and i think by reference to the other district court cases that are started to come out post riley the court will see that this one falls nicely and in line with those cases s warry i think melendez from our southern district of california but you're out of the plus factor if the court needs one in this case is that during the post arrest interview the cell phone was ringing incessantly including one call noted so there's a difference between search and seizure i think is the distinction your honour's is making certainly at the border and instant to arrest her personal property can be detained and inventoried the search of it that is proper given the search at the border just  search by border patrol agents was not incident to a recess unless it were spatially and temporally incident to the arrest or close to the arrest what do you think about that language well without knowing the exact facts of the case but the ones you've given me the search by border patrol is probably well within the united states and not at the international border probably doesn't implicate the border search exception so truly they were within the bounds of riley as a search incident to arrest that would control so if if the person has already been handcuffed and the cell phone is in the trunk of the car that would not necessarily be incident to arrest that's why i was asking you about that case whether or not you're aware of that case and the requirements for a search of a cell phone for the incident to harass based on those facts it sounds like that case was rightly decided and it's really a case about proximity here the cell phone is one of the defendant had on her but again the fact that  personal property was taken and inventory denson to arrest remains permissible even under reilly it's the search of the phone there after that's the question and that was done in this case pursuant to the border search exception whether that's a border search exception  or whether that's a border search exception layered with reasonable suspicion standard in carman either way over the court determines in that regard it was permissible though so your position is that nissho seizure of the phone was for purposes of inventory is that which argument is i think that that it is multiple things the seizure of the phone at the border is also over the detention of the phone pursuant to the bord searches section is also permissible both things would be proper and are you are you saying that both occurred in this particular case yes so your position is that the phone was inventory as part of the inventory purposes after she was arrested this is this your honor is it is an issue that isn't raised on appeal i understand but i'm trying to have my questions answered whether i was raised or not that's a legal issue yeah i'm so i'm asking you for inventoried as part of the border protection i pursued it was written down on a search in the tory post interview i believe again there's no record evidence on on this issue so that would not have occurred prior to seizure inventory occur it was it was written down on an evidence in torrey after the defendant had been arrested in question i think like all property that is inventory but again the the the well the issue was waived if the court finds good cause to consider this issue which it shouldn't the ground upon which the parties briefed the government realizes that the search was both the seizure of the phone and the search of the if in fact there was the search and seizure of that cell phone initially at the time of the arrest that should have been made known to counsel for the defense immediately upon the discovery not and at a later time as was done in this case it should have been done initially rather than having the initial theory of the defense the car couldn't make it all the way to victor ville that cell phone and if it was obtained at the border and searched and seized and a teen should have been made and immediately available to the defense and discovery thank you thank you counsel thank you to both counsel