said seventy seven and eighty and unsealed portion so well this is an unusual case because of the concession let's assume that we don't accept that concession when you think the fourth amendment violation occurred when the g p s you track or was placed on that car or my client was possessing and operating so as i understand the government's argument and i guess so they can speak for themselves that they seem to suggest that if there was a fourth  violation that occurred when he was when he was personally seized in search and when the car was stopped because it doesn't matter from your perspective actually it does because it continued throughout this was a continuous violation it started on april eighteenth and it verify the speed of that car to stop it yes but i thought the evidence at the hearing where the district court was that they tracked it they did independently they got there because they know to go to that area because of this illegal device they put it that they wanted their own device that they were tracking it separate and apart from the device they put underneath the car around them what they started with they place a tracker right jack incorrectly which you don't know they also did what they call paying more someone and what they were using carpenter which was they simply wrote a letter to the cell phone carrier and said start transmitting the dead over the internet to at the location information that phone call a pain warning and it's not a warrant the judge she may have to prove it that it stop that's what that's why this infraction is not interrupted by anything it was put on the car i continuously monitored where it went there were duplicate means to do it but they all failed and it stopped to operate for several hours on the twentieth was this the time you've got me on the dates is the time in which he was arrested i thought that they that they saw him that they had independent evidence that he was speeding a little to be sure and that they believed it up with their illegally gotten evidence then incorrect and i understand that's speed it can be done in soward you acknowledge that it needs some additional confirmation to back up if all it is is viewing i mean the pacing in this case was driving behind the car or period of time and deciding oh it's i've got it now we're going  thirty five is what comes from ohio and to west virginia about thirty five miles before it gets to where the stop happened to the county line and know these officers were local cannot county officers and they were just over the line in  adjacent county where they staged the operation to get behind him of the car so yes i'm looking at my time and i'm glad you're with me on the concession by the united states and the united states is with you yes on the series so and that's kind of been the case through out that was what we want to get past all the stuff that is wrong yeah five miles an hour over here is what makes it ok all of that there's been a lot of talk about sprinkle in the argument in this case and very origins and i want to suggest if that case if you're buying any or weighing any of the arguments  united states you look very carefully at george michael's but not by where he commented on the government was also arguing he fleeing is an intervening act what was what was happening in the sprinkle case and judge  degree of infraction that works into the brown and now we see in the street attenuation now that it's not just anything under any circumstance if it's that flagrant violation it's going to take a pretty in diminishing fourth amendment protection he expanded on that not science necessarily but what the right to privacy means as far back as eighteen nineteen is i'm going to have to distinguish ip regions that's all very well and good i mean i don't think we do but it was just wrong our prior case or the prior case i thought that that was was one of the things that was troubling to a goodly he looked at richard but richard was distinguishable as well there wasn't the flagrant say we have yes ma'am and the fact the flagrante extended for forty eight hours it was a continuous flagrant violation of one just here it happened on tuesday and nothing else happened till two days later it continued the same this tracker was attached and being used continuous now to say that you know with everything that's on cell phone data this once you know cell site location information which is not as detailed as you pos that we've got to respond expectational privacy with that regardless of the property interest it kind the guy had the wrong car and one on the application or anything there and they just think were saying you know the fact you can get insurance or would be covered if you had a wreck that mean you didn't emery's much for church and privacy and they remanded their case you see what he did was our question is with respect to the intervening circumstances whether there was probable cause without the confirmation and if your position there wasn't because they would have been there to develop yeah i didn't know that when you've been there for sure but let's leave that aside for a moment but that is i think a very good fact for you but they are there and i thought that you instead in response to an earlier question that you thought that still we have circuit law i think that says that pacers are sufficient to tell us the speed so what i'm trying to do is to see just how much  intervening circumstance was separate or not and you point out reasons why it we could hold it's not separate but if we look at this in the best light for the government i think that the problem that we're well may have been enough evidence w stuff well i can respond to that a couple ways i think soured is very instructive with that you know first and that circuit precedent that talks about justifiable basis to ignore the constitutional violation a lot of the evidence and i don't want this case to be with judge gregory noted nine years ago and griffin in his dissent that this is going to be another case that is allowing the fourth amendment a death of a thousand cuts there's got it all for the moment analysis if we're taking the whole totality of the circumstances together is a balancing exercise in every individual case and the flagrant say of the conduct here but just placing a track without a warrant while into a magistrate about what happened leading up to get a war and this is after previously getting to warrants not serving them then waiting to serve them after they've looked and searched a car is that in the record yes ma'am that that's the history of it we developed during the pretrial motion hearing in the transcript i really transcript reach out if you remember that so they they searched him searched the car searched his house and none of the informant information they had that allowed them to get the first search warrant  was born out of all the trash holes they found one corner bag that field tested positive for heroin that's it no heroin in it just little brown residue that apparently got them a warrant that they essentially we slap on the part and that's ok what evidence was produced at the suppression hearing which i understand you were under some pressure to do it quickly about this being a practice of the police we had one report in from a case i'd also handled where they gave the excuse for not going to get a warrant and then d c johnson was a corporal who testified acknowledged that that when the case the other i mean there's questions about is this the jet but it never quite it's danielle as clearly as we i know it occurs in our district but he i thought said enough in that but i think you have that support in the record if you want i'm really terry's case that there was sufficient pregnancy to overcome the assertion suggestion of any intervening event here this was not speeding resulting from reacting to the constitutional violation this was speeding that was detected and found by the exploitation of the illegal property intrusion and exploiting the fourth amendment violation and that's why this should be reversed that's unfair to me excluded and we have further proceed in space on that you know when we were talking about post john jones or preach owns yes many cases that i was thinking about was this i reported case from south carolina which i thought involved similar result would have should have been the same there because the fourth amendment has always existed and because you have language activity here and not there but it struck me that it was similarly legrand there it is similarly but again the problem with richard and to some degree in sprinkle is i don't think george michael minute and sprinkle but it looks like the richard panel was applying a and that's what i think is an inappropriate application of brown and i have more confidence in that since brown this or that street said enough to the same effect it's not black and white  be affirmed the fin its motion to suppress evidence was and motion to dismiss the superseding indictment both were correctly denied and the course application of the career from their guidelines was correct i'll talk about that motion to suppress that seem to be and also that we waived it by not bringing it up earlier in the motions hearing or any of the later pleading reference to this illegal device correct it is true that they knew where the diff the vehicle was because of the g p s but that is just like richard i thought the testimony was also was correct me were you did you handle this case below i did not but i'm familiar with the record that is a good answer lawyers who tell me they didn't handle it a little and therefore they don't know their record to do not get far with me hopefully you know you need bernie made a good point here ok so that i thought there was testimony that they did also check their information with the with the reference to the illegal device that is correct they double checked it but they paced it first and after they paced it it would be our position that they had on probable cause to stop that vehicle at that time ok so what you have to do is to go through the strife fac ok and that's your position on one of the strike factors yes that is well yes that is the inner intervening circumstance ok now do you want when you line this case up  do you think you can say that they are totally unrelated looking at the exact language they are totally in rio unrelated in so far as there was an independent reason to stop that car the government acknowledges that they wouldn't that those law enforcement officers would have been looking for that car without the g p s monitor but they were within their rights once they observed that stop to stop the car and that's what happened and richard they observed an illegal lane change and they stopped the car and the search itself in richard is very similar they were tracking the vehicle with make some other factual findings in this case including that this was lake rigged activity to have the police and that's different from richard isn't it as richard found that there was no flagrant see the district court here doesn't that make all the difference  characterize as a mix mistake and i can explain that first of all it was before that morning where they initially saw the defendant at the family dollar they had no connection to that here before they the the next day you can put it all existence but existence allows law enforcement to prevent the destruction or removal of evidence and here they had no reason to believe they would see this key again they had been looking for the they went and got a warrant as soon as they could there after they did go search his house first and then they went to the magistrate and got a warrant that says to me is that every time the police think that there is some sort of illegal activity they can act illegally after an on airplane mode so the data doesn't get destroyed it's otherwise any time you put a tracker on across the lawn let me give you an example that actually the law enforcement officer gave the court at the suppression hearing he said that sometimes they'll go get a warrant for a car when they hear that a target of an investigation is getting ready to rent a u haul or something like that i don't remember the brand and then they get there and the the target rents a different car so the warrant that they have is no longer for that specific car so they end up in an accident circumstance putting the tracker on a different car then going back and i think that just demonstrates that your client does this as a matter of practice i mean it it supports the defendant's argument here that it wouldn't when it's not convenient for them to get a warrant vehicles are readily mobile now i understand that is that about searching vehicles and the automobile exception but it's the same kind of principle you're able to go there they're saving evidence they're going to go get the warrant they did get the warrant here and granted it was a a barebones warrant it could have been had more detail but they still did go get the warrant was did did they reveal to the magistrate what they had done already they did not and it would be better fact for the united states if they had if they don't do death i don't think you get much much from the warrant but if we could go back to strike which is where you have to make your case we've talked about intervening circumstances and i think i understand your position  you don't dispute any of the facts the judge goodwin found with regard to fla dispute the fact in so far that it was a pattern and practice that they do this to violate the fourth amendment of the but that just more than three admit not even three minutes ago you told me that they did this in other circumstances so you were offering evidence that in fact it is their pattern and practice but it's very limited circumstances another example that they gave would be the garvan report as i believe you all mentioned it earlier that was an example where law enforcement was unaware of the vehicle that they ended up using a tracker on until they saw it at a controlled by and it was the source of on the investigations target that th investigations target went into that car i believe got some methamphetamine and came back out they had never seen that car before it had out of state plates they didn't have time to get to a  the the things that i have mentioned already before that it wasn't flagrant they because they had an existence and the exigencies ok but i'm i think that's a legal argument with respect to his conclusion i even understand the facts he found i thought that they were under spewed facts i don't believe he addressed the facts that the that the officer went over in the suppression hearing the part about where i believe it's in j eighty one and nandi where he talks about how he hadn't the law enforcement officer hatton seeing the vehicle well that the defendant was driving that morning hadn't connected it to him before  it wasn't registered to him so they were very concerned that they would never see him in this vehicle again that had trouble connecting you had no connection to him with this vehicle to play those are what i actually think that he should have considered is that right but that isn't disputing the facts that he did rely on i'll go down them and you could tell me whether the government disputes that the the the police secretly placed a truck despite knowing that a warrant was required we would agree with the part where they did secretly place a tracker right they we agree that they know to get a warrant for those but we disagree with the part where you always have to have a warrant to place a tracker it's a lire no your desk ok that they misled a magistrate judge i believe it's in effect now but we argue that that was a mistake not on purpose for misleading and to support that in that officer's report he acknowledges he didn't have a warrant when they put the tracker on he testified about it in front of the district would agree that they use the g p s and that's how they knew where the defendant was when they made sure they stopped all right thank you very much it's important to look at the policy considerations behind  spring fall and strive and in even richard and richard they pointed that out it favors exclusion only when misconduct is purposeful and here we would say that's not the case here it's not flagrant it's not purposeful they the law enforcement thought that they would not have a chance to place that tracker again and that's why they did that purpose it wasn't purposeful misconduct does it matter i know richard our decision which is unpublished did make a distinction in terms of the severity of the criminal violation but let's bring always clear on that talk about very severe crimes and that would be that would count as an intervening circumstance but i think richard i think as the door to smaller and intervening circumstances like a lane change like speed it's it's important to note that the officers when they stopped him were in a place that they were allowed to be now they were there because the g p s arisen that they weren't allowed to go but but they were in an open and public place it's it's very similar to richard i know i keep coming back to richard richard is on published that's true so it's not binding right that's correct and it is different factually and it is different before the supreme court case that is  and sprinkle talks about suppressing the drugs with virtually immunized defendants who commit crimes following police misconduct and that's true when they should an officer but that's also true when there is a a lane change well and the stop is legal and driving if someone else is the one committing the illegal conduct everything that happened after that stop was legal they they stopped the car there one officer went to the driver's window another officer went to where the defendant was sitting as a passenger when they rolled down the window he smelled marijuana and at that point in time they got the defendant out of the car and patted him down and that's when they discovered the methamphetamine so to the extent  whether it's a change in the law or in this case a crime over a minor it might be we have to engage with that report yes right right and sprinkle didn't do that so how much weight should the policy behind sprinklers should still be very strong it defines what an intervening circumstance is so they get your you know the one part of the repricing test and then you can tell i think we're very concerned about that third and also the first one because there also are taking the position that strength is good law because from the supreme court so we have to follow it right the government would have us do nothing left of course and but the but when you also i believe strife i  improper when they approached the car when they got the defendant out of the car there's no allegations that any of that so stuck with prostitution was unconstitutional and again after so what what right yes but if you look at the purpose in and conduct of the officers themselves after the stop they they weren't i mean i think you can distinguish this from from from gains of the const the original constitutional violation if it is continuing for that matter we would take the position that that is is helpful to show that the officers were not acting  your in conclusion the united states believes that new age and doctors should apply we believe that both intervening circumstances and in relation to the purpose of flagrant see the united states that the law enforcement was not acting flagrantly the united states believes there is enough evidence in the record to affirm the district court's decision on other grounds especially in related to the motion to suppress however if this court does find that it exceptional is not trying everything we saw that this term with according columns that was the car they covered that was searched up in the curtilage of a home ready mobility does not justify what they did is  there was no real discussion or consideration of an automobile exception or even any exit in c in fact the court really acknowledge that we don't have a case before because and their statement that oh we didn't know anything about the car til that day they searched the car they ran the registration they knew the vin on the car they knew who made it they knew who owned it they know where the tag came from he was operating at that day that was his standing not just the concession just his you had ask it matter was he in the car when they made the stop what matters is he was in the car and they violated his fourth amendment rights and continued to exploit that violation until they stopped the car while he was still in the mom or is affidavit which nobody ever challenge questioned even when they pulled her back before the grand jury was if they had joint use joint possession joint expectations between each other with that car mr terry was regularly using it unless she wins our folks they went together on the trip to columbus the intention was when they came back he dropped her off and continue his use per their arrangement records and rusher the case in this circuit does not change that because what's different in this case is there is evidence  not just being present in the car with a conveyance mr terry was there with an expectation the possessor use he had a possessory interest in it with her with the owner per their arrangement and agreement and that was documented when we followed with the court he didn't let us put on any other evidence concerning that the united states never question it it's in the record there so with the concessions combined with that again we're judged good one basically held on the standing issue is it gosh if you're not sitting in the driver's seat you don't have any sherratt their location information was tracked at the time they had it just like g p s would have been in a car and yet the supreme court has said that information is subject to reasonable expectation of privacy again the agreement  two things to sing which is case richard in richard they did not use the constitutional violation to make the stop they watched it cross on line visually that's all here and again that's on hearing and it was a good argument to make a fact try and then but in practice they made sure the thing they had a good basis to back him up to say i could see that because they were uncertain about how they placed it to begin with and then they stopped and then they got lucky when they found so in by subsequent supreme court law i think has certainly been superseded by the clarification street it's not a binding opinion here and it has some fowles by any one one issue no one right now panel it's a rule another but i have read your argument as making an argument that we could decide in your favor consistent with sprinkles i think you can and i think and i'm sorry i was putting richard in my hadn't yeah it which is completely bizarre yet again i go back to judge michael's footnote and his acknowledgement of well there's a range of stuff here you can do with that and that's absolutely consistent with brown and labor street because you're doing trying to do is to get your views on the best reading of those two cases together there's enough in sprinkle to acknowledge that there's not a categorical attenuation rule and the court retains the discretion in applying the brown and street level of anything just michael was willing to consider and sprinkle and that's why i don't think they're inconsistent here would where would the the severity of the intervening circumstance where does that play i'm i'm not sure i really understand your i think it's going to be the challenge because if under strafe the degree of flagrant saree is going to govern the analysis the wang at the end of the day on a case by case basis is going to have to be did any intervening event was it severe and serious judging intervening circumstances it seemed to me that it was oh pretty pretty close not so far from the interview asserted intervening circumstances here well then i'll go to policy with what the government tried to present and it always you know the expression about any defendant can avoid future criminal conduct if we recognize a violation here that came from bailey in the eleventh circuit that was first read in to judge michaels and isis and sprinkle richard just picked it up and kind of rehashed it but the opposite is just as important and seems to me more so and that where you have really flagrant egregious law enforcement conduct this is the only remedy to effect fourth amendment protections and if we're going to err on if we allow any inner meaning event any little bitty any of the smallest possible thing jaywalking what is that going to do to the confidence in our court system and our constitutional system and our law enforcement if that's all it takes to escape being held accountable and responsible the the exclusionary rule has been around in this country for one hundred forty years it's applied to the states since  is getting narrower and narrower exactly and my hope is that this panel will keep taking the baby steps to help push that back so it becomes something or it does not become anything more than just a footnote or something we talk about and walk past without it applying as fast as technology is moving ahead we've got to start doing more that some of the things they can do now plug into the internet are terrifying and there's no real way to avoid being drawn into them sting rays are nothing compared to some of the software and algorithms they have that can find out everything about our lives just because we plugged in a wire and that's what judge roberts was concerned about  it's the same application with g p s here the officers found a way to get past the obstacle they've had in their investigation and if they're being rushed results oriented and i'm not saying they're evil people i'm saying they deliberately did this and why that was said that if  and what said may with this case with the sentencing the officers were fist pumping going down the hall they knew they'd gotten close and gotten away with it and that did not to tear any thing regardless of how many reporters were covered the ruling on the suppress motion a matter which is good when said about his concerns and the gravity of their conduct they still got they didn't just get the drugs off the street they didn't just save a case or things that were being priorities to them they know what they did was wrong and yet they got away with it and the ruling in this case there's absolutely nothing up to this point to tear it happening again i think it matters to us as the question that he was not driving now you don't i do not know but your case is stronger th yesterday and i took your question more about the possessor or so you say let's talk about that a little bit there's no there's no backing up by the illegal device in my hypothetical and the speed is twenty miles or the speed limit so and the speed limit is sixty miles an hour so the car is going eighty miles an hour that you don't think that that makes it the only the officer or the only the in that sense but i do think what distinguishes us from any other stop is that he did still retain a possessory interest by the arrangement he had with the owner driver of the vehicle in other words his ability to challenge on the standing issue not