rebuttal that's right and there are only two issues that have been raised on this appeal is basically one of them from the beginning of the case and one that the end of the case what i'd like to do is address those in reverse order with regard to the sentencing issue i think i'd like to address that rather briefly the government has conceded that the guideline range the advisory guideline range was improperly calculated at sentencing because and enhancement was applied that should not have been applied the government appears to be requesting a general remain and so an additional enhanced meant could be applied re sentencing to our position that the government has waived that having gone through had i think six or seven opportunities to raise that issue during the district court proceedings or filing the notice of appeal across appeal and it failed to do so and after the sentencing itself the government they advocated for the guideline range and the a guideline calculations that were conducted by the probation officer and after that time there were no objections in those given several opportunities to do so mr nelson and as you know it comes up a lot as to whether what we did was a general remained or a limited remained but i don't remember ever having had a case where the question of what the remained should be came up on the front end what is the standard that you think we're to follow and determining whether it should be general or limited or that purely a matter of our discussion i think it generally is a matter of your discretion although and particularly in this case and i have to admit that i've been on the other side of this issue where i've been representing in this court a defendant who's district court counsel has not addressed certain issues and in many occasions have not had an opportunity have lost the opportunity to argue in this court because the issue was not raised and here it's not simply an issue of failing to raise an objection failing to impose an objection interposed objection at the district court here the government first specifically adopted the guideline calculation the court relied on and had numerous opportunities again did not object to the preset an initial pre sentence report the final pre sent was not in the sentencing memo was not addressed at sentencing and the judge here did ask the boss to question of the conclusion of sentencing in the government specifically said so i think the court should exercise its discretion at this point and remain solely on the issue of this for level enhanced meant would another way of looking at it be to find out from mr hurley why they did what they did at the lower court and if it was just a mistake and they screwed up that might be one result of the if they intentionally took this course of action and now are trying to change the course of action that that might be a different version that be fair certainly not going to suggest the court shouldn't ask the government for its rationale for doing what it did or not doing what it didn't do but  again i think that should be weighed it's easy after the fact to come back and say this is why we did what we did or why we didn't object at that time when the record is pretty clear that the government did and in fact there was some discussion at the initial beginning of sentencing dealing with the whole issue of grouping and and so on where the government did say it's not just conceded that the government advocated for that so i think obviously the court has the option of inquiring  government trying to get some background on this but ultimately they have to say mr nelson you know i've had a lot of cases together issue on it and you oftentimes come up with things maybe always come up with things that were raise below and sometimes you get away with it and sometimes you doubt that be correct that's a fair statement you're on i've often said i wish people would ask me before they go into sentencing i've had regret it probably it's not like i don't have enough things to do but on the other hand i hate coming up with what i think is a really good issue and finding out it's been waived because it wasn't raised in the court below so on the right to privacy if we assume that he had a right to privacy better than it seems to me the key issues are was the search of the backpack on a camcorder within the consent of the person that on the property and or was would have been would have been discovered anyway but i think the and the cases that we cited in our letter brief were talks about this that the even assuming and i think the argument was made in the district court that even assuming that the search of the bedroom itself was proper or not improper i guess that looking through particularly the camcorder and i think the riley case made clear that they can't look at the phones they can't just open those up and look at them i think it's somewhat disingenuous to be arguing well we had to look at the camera to determine who would belong to is there anything that says you can't open a phone to see if there's some efficacious to use it is as opposed to for example the opening some of the apps on the phone that might have something that private and i think there's there's a line probably specifically not that you can't just open it up and see immediately what's on there but on the other hand as far as this this was not simply a case of opening the camera and looking at it that although the detective who did look at the video on the camera said he only spent a couple of minutes looking at it that his testimony was that he fast forwarded through a lot the whole process took maybe took a couple of minutes but he fast forwarded through a lot and i think particularly in the context of this case where although the  the officers one of the officers did state that they were not participating in a vixen process here that the what ms hind wanted the police to do was just get everything that was his out of there and particular into the circumstances of this case that there's no sort of exigent circumstances there's no other excuse for doing what they did  hindi although she apparently when the search was conducted she was still in custody and i think even when she gave her consent that it was just a few hours after she was stopped for being really i don't think the the record shows what her blood alcohol level was but under the circumstances the way she was driving in the fact that she couldn't stand up makes it likely that she was extremely drunk and probably the next morning she was still probably quite intoxicated so just this consent and i noted today and it's probably at least partially my fault that the actual consent document is not part of the record it was not introduced in the district court so it was just the officers testimony about what they did and what the scope of their consent was but she wanted them to go in and get his stuff out of there i'm right that about two weeks after  the search pursuant to consent ms hindi turned over a couple of laptops to law enforcement i think it was i'm not sure i think it was even a short period of time and i don't know it was just a few but maybe two days every two days about it but what happened was subsequent to on at least one of those laptops from right either the same video that was on the video camera or other good job i think maybe the same video of jennifer nelson it was on one of those laptops so men would have if that's the case law enforcement would have obtained the video or did obtain a video outside the consent search well i'm right about that at all the search of the laptops and in fact i thought it was somewhat noteworthy that the government obtained a search warrant to search the laptops after she turned them over and the search warrant affidavit the most significant information in the affidavit was submitted to the district or state district court to get the search warrant was the fact that this is what i saw when i looked at the camcorder ok but i'm talking about these one or two laptops that were turned over maybe labeled but those again they the police recognized the government whoever was prosecuting the case at that time involved in the case realize that a search warrant was necessary to look at those laptops and that's part of the i think that in terms of the inevitable discovery issue that that's that was my that's that the warrant that they obtained was based on what we believe were our position as was illegally obtained evidence by looking at the lap or the camcorder you say if you delete that from the war because what this on the camcorder there wouldn't have been probable cause to get the warrant to search the laptop i don't believe so your honor other than that all it was were just  ms hindis statements about what she thought they were doing what that she had no real information is just her suspicion of the fact that that they were that he was selling marijuana from that room that he was but don't we have another independent source isn't the search of mr allen sisters and maybe the pawn shop information weren't those uptight on the basis of the statements of the victims and then would be completely independent and inevitably discovered also well i think but everything flows from the search of the my question is everything that's on the on the computers and even on the hand the camcorders and the cameras but didn't victims independently give a statement to the police that resulted in a warrant issued for mr allen sister's home at which moment many of the same images were failed to either in storage unit and and maybe in that camera that was at a pawn shop you don't we have an independent evidence surely discovery i think that it's not independent in the sense that everything is the fruit poisonous tree of looking at the camcorder without that information i don't think there's any indication that any of this would have happened but if mrs nelson and who's the other woman i'm sorry the name begins with an  two young victims told their stories to the police and madder standing was it was their statements to the police about what had happened to them that resulted in the warrant of mr allen sister's home and and then led to the camera that he had pawned isn't that an independent source of the same evidentiary proof that was obtained from the computers i don't believe that's independent your honor i think because the authorities would not have gotten to that point but for looking at the camcorder the first time that up until then the only contraband they had was a and l toy box with marijuana in it but she transitioned to focus on these two victims statements one of which was nelson they they had nelson and artie had already told the police that she was a prostitute and presumably under the control of al so while there might or might not been something about the camcorder in the affidavit why isn't it as trenches asking you the victim statements enough to have gotten a warrant to search the storage unit and the sisters as well because why did they need the camcorder video for that because that at least as far as the child pornography count is concerned the child pornography information that they have is what led to all of understand and so i think it would still be necessary if at all to review all of this sort of set up some sort of flow chart to determine if that was illegal which we believe it was it was an case which is allegedly tainted and if there is probable cause independent of that then the search is upheld and in this case as judge strange is pointing out if nothing else the affidavit supporting the search of mr allen sister's house is based almost exclusively on the statements from the two victims and therefore that search warrant stands i don't know of any court that has ever accepted mr nelson suggestion that if there's any taint at any point everything downstream is there for illegally obtained evidence here the police were investigating a seventeen year old who told them she was working for mr nelson she was listed on the police report as working for mr nelson as a prostitute i'm sorry mr allen as a prostitute so the suggestion that nothing would have happened if they hadn't seen these pictures i think is just there's no basis for that this was a seventeen year old working as a prostitute the affidavit that the officer sought in state court two days later specifically listed pandering and promoting prostitution as among the charges that were under investigation in addition to that they were drug officers and mr allen was reputed to be selling marijuana out of miss hindis condominium they brought a drug dog they found a small amount of marijuana and so there's there's so why should you get another shot different that like calculation if you indorse the recommendation in the p s r at the original s i think it's up to the courts discretion whether or not it's a german general ri man or a limited remand i think that in this case we did not waive anything because waiver is the knowing relinquishment i don't have a good answer for why the guidelines were done wrong in so many ways other than i think the probation officer the court and the a usa none of them have the experience to understand how these guidelines were together i think the argument for a general  that is the court's general practice the guidelines area in particular it's important to keep in mind how interconnected they are and so for example this is a four level increase that's at stake that's the specific issue here it is not ok to just send it back and say subtract four from that guideline range and the reason is the grouping counts change because there it's a thirty six and a thirty and so there is only one and a half units if you subtract four now there's two units so there's actually only three levels in play even if you only focus on the four level that i figured out but usually the parties don't know in advance exactly how the guidelines might change if you only focus on the specific in handsome and so as a general matter the courts not able to say if the defendant is right minus three minus four whatever they're too interconnected and so in these circumstances i think that a general remand is the appropriate relief we have a strategic decision to make do we front for the court and frankly for m think there are a number of errors or do we sit on it we could have said nothing wait till we get to reset and sing and then say by the way judge america hears all these other guideline issues and the law is absolutely clear if that's the preferred to explain why in addition to all of the listed time she failed to write the law as you're posing council has said then why you failed to raise it before us i'm sorry could you that you would you would be you would have even further evidence of wife or if you wait until the very end i don't think this way that you are think it's forfeiture if this court wants to say that failure to make an argument at a certain number of junctures is waiver frank i think the governor would be happy with that rule but under the case locked up on both sides a lot of times that the case law is pretty clear that that's forfeiture and on you think that you have forfeited the inevitable discovery doctrine argument by filing to raise that we didn't raise it but this court is free to affirm on any ground and there's untold number of cases that make that point and so that is something that we did not raise it i information from the warrant that's inappropriate and the warrant still stands and that your best argument for why you should win i think our best argument is apparent authority hindi told the police that she had retained full access to the entire condominium nothing about renting was said she said he'd been there for two weeks the district court found that it was two weeks he's sleeping an air mattress his clothes are in duffel bags nothing is in the dressers that appears to belong to mr allen the police go there the door some authority and a place is your home no matter h vitiated that expectation of privacy that he didn't manifest it himself whether or not society is otherwise prepared to recognise it as his castle the district court's finding was that mr allen in the way he uses space for commercial purposes he had not manifested it and so under the first prong of cats is his claim doesn't have merit i'm not resting on that today i'm saying that even if he had a reason what's the titian of privacy also has the authority what she tells a place that she thinks are drugs there they can look into tanner's but that's containers seems to me sort of address itself to the backpack but mr nelson's complaining about the backpack i can't figure out what the relevance is of the backpack  was something found unit that was then appeared in an affidavit or something one of the two laptops was in the back of the laptop was it yes but although there were i believe there was some video from those two laptops played at trial for exactly what it is evidence is in dispute but as i understand it it's really the video files from the camcorder which was found on the nightstand or the table and then the second round two days later when he calls and says there's two more laptops one is in the kitchen one somewhere else in the unit it's not clear where which betterment was that's where the trial evidence came from in addition to the other laptop found true years later at an one sister's house it isn't opening the camera and viewing and fast forwarding through the films on a different issue i don't think so your honor for two reasons one i don't think a camcorder equals a cell phone i think a camcorder for all the reasons in riley that the supreme court said cell phones are different cell phones are special because they have so much that your counter they have your location information they have your photos your contacts or emails this is just a digital picture book a camcorder is like a photo album and i think that hindi had authority she had the ability to view it it was out in the open there was nothing to secure it it wasn't tucked away in a box inside the closet among his stuff it's out on the table and hindi is certainly free to view whatever is on the camcorder and therefore she is free to give the police the authority to do that i don't think it counts as a search because if there'd been a picture book alan summer trip to wherever could the police have flipped it open and i think the answer is absolutely i think the camcorder is more akin you know i think that the videos that an individual part of an individual films on the camera partakes of a privacy interest i mean isn't that and every bit as personal as what's on a telephone because it is what an individual has chosen to f and how this one it sure did have a bunch of private stuff on it but i understand it wasn't mr l and private stuff it was there was the seventeen year olds but i don't know it was mr allen's because it's the basis of your charging him with in it was one of multiple bases and i'm not saying that there's no interest there i'm saying two things one i don't think looking at the camcorder to identify who owns it counts as a search under reilly and i'm struggling even if it does struggling a little bit with the decision or the statement that opening up a camera and viewing what's on it could in any way be for the purpose of determining who owns it are you saying out and did and i saw this seventeen year old saying i'm seventeen and then nyc it in lighter pictures means that it's her camera because she must of all someone to film her and how does that give you any information about who owns it i think what it tells us is not hindis camera your honor if it showed an asian woman if it showed her relatives her family then i think the obvious key officers conclude this is hindis and there's no reason to take that if instead it shows and one or it shows minor females engaging in such was a conduct or other videos about prostitution or the minor female at a local casino which is some of the other video evidence that it does tell them this is alan's and this is part of what hindi has asked them to take because she told them it is likely to have evidence of child exploitation she told them he's prostituting her he's taking photographs he's made creating visual picture to make advertisements for prostitution we know that because he has tended to be in some of those advertisements he's posting them in local underground newspapers metro times and things of that sort the police knew all of that and so if it's him these camera there's no point in taking it and if it's anyone's camera then there is a reason to take it and there's absolutely independent and sufficient probable cause to take the camera get a search warrant particularly i'm not aware of one already i'm not a anon suydam interrupt you but now i'm not aware of of a case that specifically says what is whether video cameras within or without the apparent authority the parent thirty dokken generally says whatever hindy has access to she can confer that on the officers and that's what she did here she told them hit she didn't say just take my stop leave my stuff take his stuff and you're free to look in his stuff for evidence of these crimes and so when they go there in the written consent document i don't believe they got into the level of detail i think it was just a general consent form but it's important to her she actually approached the officers to go search they they were squeezing the girlfriend at the scene where the defendants in the back of the squad car she approached the police and said i want you to go get his stuff up i want you to go find evidence i'm telling you he's doing these bad things i don't want to continue my apartment and i don't want to continue at all so please go get his stuff and use it as evidence against him and so i think in doing so she was conferring her authority actual or apparent on the officers so even if the court decides looking at the camcorder counts as a search so is looking in the better so is looking in the backpack if she has the authority to do so she is free to confer that on the officers and that's what happened here and there's nothing that the officers encountered that told them this is outside the scope of what she could do this court has  if the officers find things or learn facts that are inconsistent with the authority that they believe they were operating under then they have an obligation to stop and confirm is this actually within the scope of the common authority here everything the officers encountered was consistent with what he told them that she had full access the door wasn't locked her stuff is still in the closet her stuff is in the dresser drawer so a reasonable officer in those circumstances believes they're doing exactly what hindi is allowed to do and if there's an electronic device on a table if she can press play so can i and that's all that happened here on this course any further questions we're prepared to don't jump around too much here with regard to the question of the sentencing issue and the there was a comment that this is a grouping issue that would have to be revisited if there's  saying i just point out that page seven i believe of the sentencing transcript the government there was a discussion about grouping and the government also adopted the grouping that was reflected in the final pre sentence report specifically adopted that i think that it is arguing that the grouping can change from simply if you delete that enhancement well and that and yes and under doesn't doesn't the court at least have to read to assuming that he doesn't revisit the group but i think that the government should not be allowed to come in and say when you did it the first time the grouping that you did should have been something else other than what we agreed to it's my point is if we have to revisit grouping isn't it only appropriate to have the judge do it correctly whatever that is it would do it correctly based on the deletion of that four level enhanced meant which according to my calculations and i think they agree that it would the grouping would change somewhat but the ultimate and would be that the advisory guideline range i think would be to thirty five to to ninety four which is below the sentence that he got if you don't want them if you agree they have to revisit grouping in some respect what do you want the court to be precluded from doing and reset the court should only recalculate the grouping based on the  the fact that that four level enhanced mint is that's not telling me what they should be able to do what what we i shouldn't be able to start again from scratch what do you think the government is going to ask them to do that you want to  from doing i think the government of i'm still a little bit unclear from the government's brief in terms of how this grouping would work but basically that no additional enhanced ment's so i think the enhancement that they're talking about is an enhanced meant that would be applied after all the grouping and after everything else is calculated you want to restrict them from doing something that you're not even sure what they might do yes that they will that this five level enhanced meant that they're talking about they should not be allowed to advocate to have them applied on  remained as far as the suppression issue is concerned and again without seeing and of assuming it was just a general consent to search i'm not sure that a consent to search for some sort of contraband that if the court looks at her affidavit or the affidavit for the search warrant what the testimony was about what she said it's all i think i believe that all of the suspicion she has no actual facts and it's not and there's nothing that's corroborated about her suspicions in advance of this illegal search of the camcorder and maybe they can go through if they're looking for and i think i don't understand that they pick the them up in the car the woman admits she's a minor and she's she's a prostitute and she either admits she's working for alan or it's pretty clear from the circumstances that she is i don't understand how we say that and know anything and then hindi and then indeed tells them what she told them pretty complete was pretty complete picture wasn't well i think that that does not allow i mean there's nothing in the record that she didn't say that he's taking videos of me or any of these kind of things so that the fact that there's a camcorder in there and i would dispute the fact that number one that ms hindi had the authority to go in and she can just look at it if she wants of she's acting isn't doing that in the private capacity maybe but if she's doing it as a as an agent of the police that would she would it would not put this in any better position but the still we would again i obviously i'm out of time but i think this far as the search concerned that i would agree with your comments or what i understood your promise to be judged ranch that the camcorder these days i mean the video could be on a phone and when you look at riley and they talk about all the reasons why a cell phone search  guess i luckily as far as i know maybe have to go back and look at albums and we've got boxes of photographs from they cations and so on i'm not sure that the police could just come in and rummage the were photo of our photo books our photo albums or anything like that gun cases that support your i have a camcorder being functional equivalent of a cell phone no not that i could find but thank you great thank you counsel for your arguments today we do appreciate them  so be submitted make all the next case