afternoon as well how are you ready to p this court counsel i'm susan will him with the office of the state of health defender and i represent the defendant gerald long and today i'll be focusing on the first and third arguments and i agree the trial court erred when it failed to suppress the seizure gerald cellphone which was taken from him during and on all unlawful detention the search warrant only authorized the police to search the premises that you sixty six lisa dr but the trial court upheld the seizure of the phone and its micro s d card because i believe the lieutenant walker had the right to detain long in conjunction with the search but under bailey be us the court found that once the occupant of the residence is beyond the immediate vicinity of the premises that are being searched any brief stop for questioning must be based upon reasonable suspicion here jerald had already left the trailer and was in fact leaving the trailer park when the person counted officers he was not present where or when the warrant with executed and that here the stop is not justified there's no reasonable suspicion that gerald is engaged in criminal activity there's a search underway but the search is only to gather evidence and the pleas for still investigate there was no warrant for my client's  looking for him the court hensley was very clear if the analysis applies to completed crime and again here the police were still investigating and collecting evidence to see if a crime had occurred there so we'll have the may i ask in regards to report it is difficult to tell exactly what lieutenant walker knew at that time because his testimony at the motion the suppression hearing did not necessarily touch on this issue of reasonable suspicion but i believe the real problem home and there are several people in that home there's nothing identifying my client first of all there's not a completed crime and there's nothing pinpointing my client and for those reasons i don't believe that a reasonable suspicion existed to stop my client and even if he was even if they were justified in stopping him the scope of the stop was so quickly in march the officer gave several reasons he said he stopped him so that he could tell gerald about the search and to see if darryl had weapons in his vehicle but officer safety couldn't have been his concern gerald was away from the scene that search if he had weapons in his vehicle he wouldn't have been bringing them back except that he was stopped by the police and told about the search in fact  subject his residence was a subject of a search yet he's seen leaving or the officers told he's seen leaving the approximate area of his home the police officer knows car so it's not reasonable in those circumstances stop him it's not reasonable in what happened here your honor had they stopped him had they patted him down or asked him about weapons but they didn't do that they stopped him and then he looks in the car for things that are in plain view yes he did that he didn't seem to know the also brought my client back to the scene my client was away from the scene and officer safety had been achieved by my client we've seen brought  would allow for the stop of the defendant what is it that makes this case in a not governed by i think one of the problems here it is governed by bailey in the sense that in bailey because once the court reached that ruling that he was too far away from the home and that we were looking for reasonable suspicion the court remained in the case back to the trial court her determination of whether there was probably arms aren't reasonable suspicion and here i think we're kind of an awkward situation because we're leaning pats on the record trying to find whether or not reasonable suspicion existed when the trial court wasn't asked that question and so since bailey controls it may be appropriate for th allow the trial court to reopen this or that limited question of whether or not officer walker truly have reasonable suspicion to stop him once he was away from the scene well what if bailey is that we don't get it do we get to the terry course of the analysis that is the only that is that would be the exception he could have stopped him he can't stop him and underbelly cannot stop him but he could have stopped him if he had reasonable suspicion ok from the residence and let me back up even further was there testimony that the residence was in the trailer or yes where is where there's testimony of the exact location of the residence within the residence well within the first yes there is that test were were that they talk about the search warrant being for this address within i believe it's wilder haven trailer park i don't think they junction with the railroad crossing so that it might get you past the daily problem that you would otherwise have because that it doesn't sound like it's in the immediate vicinity so then that it would have been discovered by lawful means and without reference to the police error of seizing that cell phone and i argue that the evidence could not have been found by an independent untainted line of investigation the state can't prove independence the problem is  would have how do you pronounce his last name by the way i'm pronouncing it worth six or six ok so of course it is looking at the laptop and finds the images that were created by you know the cell phone right images but in none of those other cases did he attempt to trace any of those images to their creating device he only knew that this l g phone existed because of the season inventory they did not routinely search for these other source devices and this is more like the butler case where the officer saw a text flash across the cell phone and then he knew that he wanted a warrant search that cell phone for its staff or say could trace the image to a cell to a cell phone but he did not necessarily to these cell phone he's relying on his prior knowledge that this cell phone has been placed inventory and this cell phone would not have been found under an independent line of investigation because again he has relied upon that knowledge that it's already has the images that are discovered on the laptop and from his analysis of the images he can identify what type of device created them is that's fair from his analysis of the matter  is that the state is saying that he would routinely in independently done this which is the test that they have to make that it's and and that that there were more than these photographs discovered he was originally charged with other photographs and images as well how many others there were originally it we're supposed to say oh but wait it really is isn't it shouldn't be taken and i think of your honor's going back to the issue of consent here this stop was not justify permits inception so any consent any actions from that's moment that stop he's a weapons deal we were going to search for weapons in his trailer he leaves the site and he's driving a bronco or stolen computers or whatever it might be to be selling them i want to see if he's driving away from the scene with any evidence that we're trying to find in a search warrant i'm not by the way we're searching your house i thought you'd want to know but to i want to make sure you don't have anything that we're looking for you transported away from the scene that we're searching i don't grasp how that is fellow who you are targeting is taking where computer two or a cellphone or two that are used in creating these energies and i think the one thing we were talking about officer safety again when you're talking about the firearms in every again i would also argue that this errors not harmless the honor of reasonable doubt the court has to do several things they can focus on the error and they can also look and see whether the evidence is cumulative and in this case the error is uniquely to and i would ask your honor suppress this evidence which is defined by a specific six factor lampworking tatts and the jury there were found him guilty without making a finding of an essential element of the offense and i understand up front this wasn't raised in the trial court and that ordinarily results in waiver but the rule of waiver can be modified when necessary to ensure the fundamental fairness of the trial and that ensure that includes ensuring that certain basic instructions essential to a fair determination of the case by the jury are given to the jury and here instructions on the elements of the dance are those basic instructions and since there omission creates a fundamental error i'm asking that you do not apply the waiver rule in this case what what i know when they see it nudity isn't lutie and these factors in her late and when you look at cases where there were briony of photographs some photographs are lewd in a series and others are not based on those individual photographs it is such a complicated chast and in this case the jury is out to define this were glued without knowing the tast without having the tools without having any guidance whatsoever and i've struggled to come up with another situation where there's something this complicated a term that has settled a defined test with moving factors that the jury is expected just to come up with on their own and i was at a total loss to put anything in i can i can differentiate in the state's case is that i couldn't find anything to say that this is such a complicated test and yet the jury is asked look at these photos usurer common sense and determine whether they are lewd determine the most critical point in this case the definition of the word that defines its fine but which by the way there is this test that you're not going to be aware of and my client only gets the application of this test here on appeal after his conviction and so for that reason i'm asking the waiver  distances it all or any of the factors listed as relevant in bailey such as the logical limits of the premises line of sight or ease of the entry although defendant has attached a google map to the brief as a twenty seven street and address that was not in not mentioned one time in the motion to suppress hearing and nine even sure how that my opponent came up with that address therefore read asked tensely defendant was somewhat like being on a wanted poster defendant was called the potential suspect in the offense being investigated the target at the start the search warrant this photo had been shown to the officers pornography the officer knew that defendant's truck was registered to defend advocacy andras and defendant had a prior arrest for sexual offense defendant was reasonably suspected of involvement in child pornography a felony the stop was justified to check his id post questions and detain him briefly alternatively and this is the grounds that the transport relied on the cell phone was  progress the investigation was i'm tainted by the alleged illegal stuff and the condition of the evidence would have been the same as the data could be recovered even if to read it from the cell phone the police were created by l g phone the officers would have applied for and been given another search warrant for an l g phone belonging to defend it or someone in this house based on information gleaned from the search of the computer maintains that the air in the air was harmless in this case the state relied on circumstantial evidence to establish that defendant took the photos apart from the evidence found on the phone that data on the laptop indicated the photos were taken by a mobile device the two minors and their father testified that defendant hung around their house and them during the time period during which the photos were taken the detective t minor and the two minors identified defendant as being in a video taken by taken by the mobile by a mobile device in the hallway of their house the two miners testified that the video was taken around the same time as  two photos that adoration at issue here the video was found on the laptop in the same folder as the two photos the issues here at issue here in addition the photos were located in a folder which was user created the defendant hung around with them at their house and the defendant took a video of them around the same time the state would ask ask based on all these arguments that the support for the the trucker's decision on the motion to the jury instructions given for l my pattern jury instructions in their presumptively proper the jury did not request a definition of lewd and therefore the court did not have a duty to supply a definition the jury made  a finding on the element of lupus but did so based on common understanding of the word loop supreme court case harrison found that the expression quote exposure in quote is not unconstitutional given its common understanding moreover there is a danger to posting factors and i think the second district case then is an example of that in that case the court stated the six factor of lamb born has proven quite difficult to apply and they go through a multi page analysis of the six factor and whether the point of view is from whether it matters whether you're considering things that are external to the photograph and those are questions that the jury might have just been more confused by if they had been given perhaps the important factors in the arijit and not amount to plain air where the evidence was not closely balanced in this case and the second prong of players difficult to meet because the jury in this case was instructed on the essential elements of the offense and in the air was not so grave and fundamental that the your honor i would argue that my burden is to show that gerald was not in the immediate vicinity when the search was occurring and the other the state asked to strike the map you can use us you can use a google map and ask the court to take you dish notice to show spatial distance the distance between points and here again i can't necessarily control how a map is printed when i'm trying to create one and this wasn't a question in the trial court so as in bailey if this record is instruction argument i'm asking for review under scream court rule or fifty one c it's coextensive with this plane air and it has basically the same problems whether the evidence is closely balance and they are so  affect the fundamental fairness of the trial when you talk about the jury not requesting this test the jury didn't know that there was a test for lutie they were simply told to use your common knowledge and define whether or not these folk decide whether or not these photos are lewd whatever this court in explain has found that it's proper to give this six point test because it gives guidance to the court sorry to the jury and that the jury is allowed in his able when they're given this test to properly apply it explains a little bit different because the jury asked the definition of lewd trial court declined but instead gave the land for backers and we found that it for this however the jury had no idea that such a definition was out there and again my client stands convicted of lucidity when this is the civic six point test to define that very word was never presented to the jury and the jury never had a chance and was instead apply their common knowledge of what we all know to be a very complex situation and for that answer are i'm sorry for that reason i'm asking that this court vacate his convictions