good morning your honor just kind of made it clear to the court this case really presents the issue or the question of the thought of does the fourth amendment mean less than it used to me and i say that  was a warrant at all it was a general warrant allowing a general search and void what was purports to be a warrant cites the wrong standard for issuance of a fourth amendment warrant it stands for evidence that might lead to says it's for it might lead to evidence of a crime and this is really the twenty seven zero three standard what what's labeled as a warrant in this case as suggested is really a twenty seven  the standard probable cause war and of course george castillo recited that he found probable cause yes it why isn't that the end of things you have to rule forty one warrant with an expressed finding of probable warrant that can't be authorized even with probable cause i understood your brief to be saying that the statute authorized a warrant on the less than probable cause not that this was for business or even if the also the general search under in the heading investigatory search which is what is general search you know they are they are different the general search is something that does not particularly describe the information in place an investigat  search is one that seeks well in the words of warden against time mere evidence and the supreme court has said in that case that it's permissible to have a warrant to seek me or evidence p i cited marshall for the marshall vs arlo case which talks about general searches have to it was unwise to use the word investigatory but what i'm really driving at what i very carefully clarified in my reply avoid which would avoid the whole problem of the search but this is not i'm sorry tracking instrument call it what you well but this is not merely a tracking device it's used against mr sanchez it is an actual phone to respond tracking is merely following and in knots talks about tracking is what can be done visually if you have an agent follow along you can track here they're drawing out information from a cell phone the cell phones located in a residence there's an expectation of privacy and there's also arguably the government trespass in the sending like simulator and really the i would mention to the court the patrick case addressed decided this year addresses so many of the concerns that exist and one of the things one wants away from the path a case with the awareness that nobody really knows what was done and in this sanchez case nobody knows what was done we don't know what extent of a search took place because defense has never been informed of what instrument was actually used so we can't figure out what the capacity of that instrument was if the instrument was toned down to leave it there any are you contending that the agents acquired the a record to show that they are quired or used the contents of communication has there been any effort to introduce in evidence any contents of communications well in a sense judge yes because i a specific question has the government attempted to use the contents of any communications that i don't know well if it if they're not being offered in evidence the most you could get would be an order suppressing such contents if they're never offered in the first place an order suppressing them wouldn't do any good while i can't agree with that your honor because if they existed capable of so i really i really don't know much after days says is that they're capable of revealing somebodies location well i would also commend the descents and do you have any understanding how i can be held accountable for not knowing what happened where the government is keeping it secret from me and keeping it secret from the court it's really disturbing mr kennedy could i ask you from a different angle suppose the agents are conducting an authorized wiretap and they pick up a message to one of the targets call bill the following phone number if that number the does law enforcement need and you know a warrant to determine the location of that landline they don't give me i you know that i honestly don't know i would think from what i've heard of know now i'm completely into metaphysics if you're thinking about physics your client was located by signals your client's phone sent outside the us that your honor i would disagree with one hundred percent that well the said to be that it takes control of the phone just like days of rage a little while ago in chicago the phones were going to head for the demonstrators and it worked out the government had a way of drawing all this information from the phones and it used up a large amount of electric battery power so i am saying thank you council ok oh i'm sorry i went over the red please the court the district court did not commit an error and denying the defendant's motion to suppress the location information from the defendant's cell phone on in july two thousand and fifteen and h s i special agent applied for a warrant he cause and he issued the warrant the warrant that was issued here authorized law enforcement officers to use this electronic investigative technology cell site simulator to locate the defendant's phone  based on the particular signals that the defendant's phone emitted and in this way contrary to what mr kennedy just argued this was in no way a general search the place to be search was articulated in the warrant application and in the warrant it was the phone and the items to be seized were nothing more than the location information that allowed law enforcement officers to find the phone when the cell site simulator was being used moreover that's exactly what happened in this case law enforcement officers used a cell site simulator in the morning of july twenty seventh two thousand and fifteen they were able with that simulator to find the signals being emitted from the defendant's phone and through the use of that device were able to determine that the defendant's phone was located precisely in his residence that was the extent to which a cell site simulator was used that morning and the extent to which a search was conducted pursuant to the warrant that was issued in this case interception of continence i do not know what i do know is what you want to use the last twenty four hours or so i have seen the news and in washington i did at the problem is that there is there is no expressed record about what specific device was used by these law enforcement officers to find the phone in this case but that's because seven is a express affirmative waiver to hide the defendant at the hearing regarding this information and he made that waiver twice during the hearing the hearing took place on september fourteenth two thousand and sixteen the transcript is documentary one o four if you look at page five of that transcri the defendant was talking about how he provided a set of exhibits to the district judge and said that based on that set of exhibits he could confirm that a cell site simulator was used he then made the affirmative statement that's all i need that's all i the defense need to be able to present this motion when i am at page sixteen seventeen of that same transcript the government offered a stipulation that yes in fact this cell site simulator was used in the morning of july twenty seventh two thousand and fifteen this is what we were going to do in the war instructed law enforcement officers not to do more it was locate this phone using the signals emitted by this phone and don't do anything else if you inadvertently come across any information from any other phone i'd also add that if there is any information that's inadvertently being picked up by pinging as your honored put it and the other phone one it's covered by the warrant but even if that's problematic that the defendant doesn't have any standing regarding that point and the defendant admitted as such when he was making his argument in the district court all the defendant has an argument to make is about whether or not he was right tipping his cell phone and get information from his cell phone going back to this point about the waiver he again he made this expressed waiver or two times and it's also he made it in the context of the argument that he was making in the district court in the argument that he made in the opening brief in this court the defendant has been a moving target through this litigation in the district court the argument was that the government's warrant application affidavit did not adequately meet the probable cause standard by the fourth amendment and instead that the government only satisfied this lower threshold laid out based on reasonable grounds and eighteen u s c section twenty seven zero three d that was the argument that was the argument to which the government responded that was the basis for any objections to any additional information coming in that was not relevant to answering that question that the defendant posed and that's the argument that the that judge alonzo answered in the district court he makes the same argument again here in his opening brief and only now only on his reply brief is he really changing his tactic in talking about how all this other information might have been possibly obtained through the use of the cell phone cell site simulator excuse me at this point it's just pure speculation there's no basis in the record and no basis for him to have thought that anything other than the location information from this cell phone was obtained in the few minutes that it was used in the morning of july twenty seventh unless this court has any additional questions the government asks this court to affirm the judgment of the district court thank you thank you very much mr kennedy of the court appreciate your willingness to accept