montoya riley to separate the two so that there's no confusion this is an interesting case that is going to be at the forefront of fourth miniatures prudence with the continued expansion of the powers within our pocket with our personal communication devices our cell phones or p t a s or whatever name that these will have in the future the government has a continued and broad way in which to track american citizens in this case the government in attempt to locate my entire riley who is a wanted fugitive from the state of michigan initiated or salt an application from a state judge in that state for a pin and trap application strangely enough and outside the scope of the stored communications act statute itself within the application and specifically citing and stating to it quoting it they requested persuasion location of mobile devices g p s location such that service provider shall initiate a signal to determine the location of the subject's mobile device and that is the language in which brings us here today which is that the service provider shall initiate that signal this is not a case and can be distinguished from many of the cases the government cites whether it be the we're going to or the skinner case in which this court and other courts have found that the tracking either through historical cell site technology which is different than what we're dealing with here today we're dealing with perceive us real time g yes tracking  cell site which is just being able to tell what tower it's pinging off of in difference of what we have here which is within a matter of feet the location at that very moment that the g p s the difference from skinners is just more accurate then also in jones that said you cannot trespass you cannot trespass in order to install a tracking device further the argument in those cases was not that the g p s signal was the functional equivalent of a  tracking device which would require a real forty one showing us that riley over rules or i am saying that based on the facts in this case because of the ability for the provider to go into my client's phone to initiate that signal that's what pinging was no pinging is well it pinging is the phone is always pinging the phone is on the ping is when the phone is searching for the tower maybe i misunderstood but i thought  in skinner the the phone company said sent of paying and got a response right and that's the difference between that that is the difference and there's a functional difference here between those two when it comes down to the whether or not so tracking device or is  in the concurring opinion with justice so sort of my your about her concerns about the invasiveness of g p s tracking when you paying the phone is communicating with the tower and that tower has three arrays one hundred  one hundred twenty degrees on either side and it gives you a general location of what tower the i asked if the difference was how accurate it was and you said no so now i'm confused i'm in we may be it may be a distinction without a difference about using the word peeing in two different senses i think maybe the problem it may be when when i go from what i understand when i read those cases in mine or scene of the technology when it may be that sometimes in older cases the language isn't as precise as it should be or simply i'm not you know it's going to be a question of what they were doing when you ping a tower and it will tell you what what tower that phone is communicating with and it will be within a certain mile distance of that it's isn't the difference that when you're doing that you are the phone is initiating yes you are pinging to the tower in this case the phone company yes is pinging if you want to use the same word to  have and that's why we go back to the jones which is we're talking about trespass if they simply allowed his phone to communicate and they paint it or they allow the phone to ping the towers and they use that to get the general location of where he was that's different than them going into his phone which is the trespass and causing his there you're creating or you're using the word trespass yes in an electronic analogy sense yes or no and i don't know of any courts said that you know it's the equivalent of sticking something under your bumper i didn't think so they would not it would be more analogous to if the government decided to go into your computer without a search warrant and they were able to communicate through the telephone lines there's no information about that and then become there other than the location which is available from from towers from the electronic it's so much different than what's available from the towers the towers can only put you in a general location in a town or city it's not something that's going to be able to be used to track real time movement with precise location that can be almost it was say he was at the motel likely in the vicinity of a motel actually what this and when you use g p s coordinates it tells you within a matter of feet where the person is standing what they did is they were able to because if they had a specific area in which in that hotel he was they were able to go to the hotel  or inquired at the front desk absolutely did if he had been standing on a street corner they would have been able to drive directly to that street corner know what street corner he was standing on what side of the road he was standing on and within five to eight feet know exactly where he was standing and that was that would that would be an intrusion if they you mean if the intrusion was from the signal but they initiated into his phone that allowed them to gathering gain that information are you not making and i thought the precedent and maybe maybe i was only going there but not you the precedent that if you're tracking someone on the public thoroughfares then then it's ok so you started to say would be terrible to find him on the street corner but and he is visible whereas here at least in the end they do ask the desk clerk but they probably could have found the individual room if there was no desk clerk or at least they could have gotten a lot closer yes and again it's not my when i say that they could locate him on the street corner i'm not suggesting that if he's staying on the street corner he's entitled to some kind of expectation of privacy just standing there they could've also had a photo in the car and driven by and seen him and with the photo said there he is what i'm saying is because of the increase in this ability of th technology to have real time tracking with precise location but that ngae that invades the privacy of those ill you you would say it's unconstitutional even if they had found him on the street corner or not i don't know if i'm trying to say is it is is  the problem that it's inside the privacy of his room or home which has extra protection or you just don't like the fact that your phone when you turn it on allows them to track you on the public thoroughfares for purposes of this case i'm saying because he was inside his room ok two additional protections however i would suggest that based on the dicta in the jones case that that we're moving towards an environment where the court is taking a specific interest in the idea of real time precisely tracking of citizens if you're not claiming that right i'm not claiming that right now i'm much more limited in the argument that you have a say to me the big issue in this case is whether it's skinner distinguish that you have a section in your brief distinguishing skinner at it doesn't mention this of his tecate a distinction between two different kinds of technology which leads it's hard for the other side to respond to i think in the beginning skinner involved historical data it was current wasn't it was current but it's not historical but it was also cell site and again when you go back to the cell site or and get in and in that case what they did is they were going under the line of precedence that because he was on the interstate or highways that he was lacking in the expectation of privacy which is why i do on this case i'm sorry sir where is this something in your br and so on eight you say we're in the minority following skinner that he doesn't have a reasonable expectation of privacy at least in that case where you're on the public streets yes  in this case in this case factually in this case if if we took the rule somewhat taken from k rowe that you can't without to get into a person's home or equivalent of a home could they have found him in this case that is did it track close enough to the airport in that have you have you looked at the individual reports as to on the g p s right as to where they found him how close they found him yes sir excluding excluding the room suppose i give you that you know the king of england may not cross the room tenement and neither can a t and t right will they still get to the desk clerk the when you plug in the g p s coordinates into the computer which is a fairly easy search on aim one could do it is it is clear that the coordinates in which they were receiving were from within the building well they received a lot of coordinates i mean some of them i did some of that of my cracks they have some of them were before he got into the room yes and some of them in my casual observation are nearby that's why i'm asking you that were do you have a view or do you concede that if we erase all of the data in the room they still would have gotten to the your port in interesting yes i thought i would have to say i believe that if if we come down to a ruling that says we're going to exclude everything that was in the room because the of the protection within the room but everything outside the room is ok i would have to say that it's going to be close enough that it's the coordinates were within that general area that if they had set up surveillance or if they'd done door to door canvassing they would have had to say right that's right thanks and i will concede that point i would go back to the fact that my argument basically is that just the initial trespass into the phone violating the riley case is the issue for the fourth amendment in this case exceeding my time the other issue an argument those is not really developed in your head we have to infer from your background right or infer from the the fact that the the issue is that the order says that they can invade my client's phone that they can initiate and i do get it where you raise this and  are having trouble finding it i think if you don't raise it you kind of forego it it's kind of a sophisticated interesting argument but those are those sophisticated interesting ones the ones we like to figure out before we come to oral argument right i believe in there we talk about the police officers i mean talk about this argument that it's a physical trespass in this technology different from the skinner technology that's what you're arguing now right well yes good morning your honor is in may it please the court actually brown to have the united states i think the very most that you've heard in this case today an argument and in the papers filed by the appellant is that he may have had some subjective expectation of privacy and the signal being emitted from his cell phone i think none of what he's argued though answers the question of whether objective lease society has any interest in protecting his alleged expectation of privacy in that  signal as the court is aware the government has argued three arguments in this case as to why the district court's order should be a form affirmed we will leave that those those arguments are all independent of one another in each provides a sufficient bas for firming the denial of the motions press our first argument is that skinner and the persuasive authority in the wake inten district court decision leads to the conclusion that there was no reasonable expectation of privacy in this case skinner holds that there is no reasonable expectation and short term tracking that occurs in public thoroughfares as the court knows and skinner the tracking lasted approximately three days here we have tracking that lasted seven side information so i think that that information is incorrect i think the tracking it appears to be exactly the same because it's pinging in scanner which i would disagree with his argument that pinging is sort of multi directional i think the way case law describes it pinging is coming from the cell phone company to your phone and so he's saying that there was painting in scanner and there's also pinging here he alleges we don't know that but i think we can take it and we let me try that again though because and correct me if i'm wrong but as i understood it in skinner there they're tracking him when he makes a call here  initiating a signal whether he's making a call or not i'm i right about the last point he's alleging that there are in the shooting a signal there's no evidence on that point i thought i thought we thought that was the whole thing that we had these these s coordinates at various times and those times are times of which the phone company initiate that they're not times i mean they might overlap but they're not time because they're making a call to my right about the clarify your honor i think the conclude the confusion is that prospective data can come from two sources it either comes from the g p s features on the phone itself or it comes from the cell towers where i right about that and i'm disagreeing because i don't think there's any evidence as to that point i think it's equally possible in this case that eighteen's he got the g p s information from and cell towers and not from the coming from the phone or the tower but in any event we know that it's pinging well i think maybe maybe i missed this or maybe this is a point developed but i didn't think that cell phone tower information could give you the kind of specificity that we do have in the record as i read it in the record there are latitude longitude coordinates that are given to within a few feet and at least all of the cell tower information cases there are like quadrants or shapes or sectors if you want to be mathematical that are much larger than that am i wrong about that  i would say so because i think the historical data which is insisted on not nonspecific as you're describing and can only a most tell you the neighborhood that someone is in and that is not as specific as what we have here but it's also the case that cell towers can give you prospected information which are the type of information that we have here so we simply don't know whether these g p s coordinates came from the tower or for the phone but i think for purposes of resolving this case you can accept their argument that it came from the phone in the conclusion here or the outcome is exactly the same because he may have had a subjective expectation of privacy but there is simply no taste that says that that is something that objective lee society recognizes as being reasonable is that are you the statement you made is fairly broad do you stand by that statement regardless of whether or not he's a fugitive and regardless of whether or not he's in his home i think that if if these coordinates had been sufficient to identify a home or hotel room this could be a different case but i thin fact here that the court and it's only get the police officers to the hotel lobby essentially and then the head then have to do additional work and terms of figuring out exactly what hotel room he's in makes this case different from if he had been identified in his home and makes this case more can't skinner ok so you at least with that argument you would be willing for these purposes to go no further than that you're tracking him in the in the public space so if we i mean the again my understanding from our research is that there are lots of these coordinates that are in the record that are indeed in the room right you're on but you willing to to to let your argument only go as far as the public spaces ok skinner say by continuously pinging the authorities learned where he was in these various case was that the former has been paying right and i think the i was stunned to hear his when one of those going on here and i'm sorry i was that different from what was going on here i think they've they've argued that the same thing has happened in this case and there is no argument there is no evidence to the contrary so again for purposes of this case i think you can assume that they're allegation is correct but again the outcome would be the same ok thank you and so as a scanner i think you have shorter term tracking than what was present in skinner and it's also public in nature in the sense of as we've discussed that it only gets them so far as the hotel lobby and not to a specific hotel room we've also argued secondarily that the arrest warrants in this case have made it possible for them to do exactly what they did essentially there are many cases which say that implicit in arrest and arrest warrant is the fact that officers have a limited ability to enter into someone's home in order to execute the arrest warrant and so here again because they only get so far as the hotel lobby and then they don't have to do the additional work of identifying the hotel room the arrest warrant essentially is what allows them to then go into the room was any misconduct on the part of the marshals in memphis who executed the search warrant we executed the arrest warrant excuse me and so you know in the absence of any evidence of wrongdoing on their part there is simply no basis for suppressing any evidence even assuming that there may have been some sort of deficiency in the order itself and unless the court has any further questions asked thank you thank you