person is the one who can take benefit or take refuge in the good faith exception of the court explain that negligence or constitutional error and objective reasonable notice are mutually to ask you if we so we have the two issues we've got the pocket funds and the car fund and the government seems to have conceded that there was an error with the car phone and if we agree with you that we don't there needs to be a determination about what the fruit of the car phone searches is do we even get into the pocket phone issues or do we need to figure out first what the fruit of the car phone search is and figure out whether we even need to reach this reilly issue well if i just looking at it right and robinson is not binding because robinson doesn't or that a cell phone is a closed container and right that it couldn't because they didn't even exist at the time of robinson so i mean can you articulate any kind of lying about how similar to the facts something needs to be to create a reasonable reliance i think you would need to be i mean by binding precedent is actually similar from a court that jurisdiction the question is whether robinson was binding precedent relies on the premise that a cell phone is a close container first and that it can properly be searched incident to arrest i don't think that we can fairly majority of the california supreme court justice is much more learned than the lower than any officer on the street i doubt they felt that they were bound by then existing supreme court precedent and that they did not feel powerless to go beyond th that that rally ultimately came out right so those presumably reasonable people who came to that view of the law how can we felt an officer not anticipating that rally would would come along later it's as just stop right there stop it there because that's the exact same mistake i think you made in your bridge i'm not saying that the california supreme court's decision was binding in some sense i'm saying that if we're trying to figure out whether in reasonable officer of existing tipping court precedent three wryly could could or should have anticipated that i'm not getting a warrant was going to be unconstitutional it seems to me a nice comparison  point the justices of the california supreme court and they obviously looking at the exact same by default came to the conclusion that seems to me dooms your position here and i want to hear your response that forget about whether the california supreme court's decision was out in the question becomes can a can a reasonable officer ignore a federal district court in the northern district of california and can that same officer ignore the district court in florida or the first circuit and were  the first circuit decision didn't exist yet it came out later but that the ohio supreme court went the other way that there was a district court in oregon that i think may have been also slightly outwards but the point is there was a forty on both sides of this issue there was also a statutory authority both under state and federal law it's significant i would submit that these same political reasonable officers literally could not have gotten a search warrant from a code section fifteen twenty four in california based on the misdemeanor nature of this offense and so it seems somewhat in can ruin that officers acting in purported good they could do more loosely what california statute prohibit well legal principle that you want us to announce in the say if you were to publish an opinion in this case really to your favor what does the state of the wall have to be in order for the good faith exception to either apply or not apply let me just hear your robinson applies well i think it makes it unsettled if it's not right but it does so with say there's one baltimore of course would be correct but what if there is one district court in wherever if one just a court in florida says we don't think this actually applies to cell phones even though everyone else in the country has been assuming that robinson does is the law now unsettled because of one district court case across the country well i wouldn't even have to rely on one case going the other way it is long as there is an absence of a case holding that it that it is squarely within this exception than the exception doesn't apply the rule applies i think what we're trying to do is set up a situation where officers are following bright line rules not guessing but that means i mean how that makes police training completely untenable right because you would need a case exactly factually in every scenario for anyone to ever know what they can do it has to be that police officers can be trained in general you can search people's pockets or in general you can do this or not and so  i don't understand how it's workable to say that unless there's a case directly on point you can never follow the general rule that seems to exist it is workable and the workable rule is what the fourth amendment says that people  the rule applies and the rule is that you need a warrant if you want to search somebody's phone there will always be the next case there will always be the next piece of technology or the next intersection of society and technology and the question will be do we mean what we say when we say that there's a threat for how is there ever a good faith exception under your reading of how clear the law needs to be well it's exactly what would davis that there needs to be binding appellate precedent binding in the davis case it was that belton spelled out exactly what the search was that ended up being overruled but our our court has never said that the good faith exception is to be exactly factually on point i mean we've got the g cases where there is other kind of minor thing we said ok it's good faith to have g p s is i mean we extend things a bit right i mean and that's how i think to do what you're saying we would be conflicting with prior ninth circuit precedent one way i think the opposite i think if we were to say that officers acting in area of the law that is unsettled that there is no case on all fours i think that would be getting way out ahead of davis i think it would be getting way out ahead of other circuits no other court to my good morning your honor to me at least the court when hung on behalf of the united states judge friedman i do want to hit right where you left off which is what constitutes binding and how a precedent and you're absolutely correct that the ninth circuit has already answered that question in the g context i think you were referring or alluding to united states versus thomas the ninth circuit case in two thousand and thirteen and i didn't cite it in my brief but having reviewed the reply did a little bit of additional research to look for what the ninth circuit determined binding appellate precedent to be and in thomas the ninth circuit how that authoritative guidance from the supreme court that allows a particular action constitutes binding appellate process on it and that's precisely what robinson was here robinson identified a bright line rule that was sort of the utility of what robinson professed to provide which is that officers of the un paula cite authority to search incident to harass so long as that item with seeds from that item from the person seized from the bed of the vehicle and mr coleman i don't think had the facts entirely correct that court did analyze whether the good faith exception applied to the search incident to the arrest that was within the immediate control of the person he was arrested for that reason can move could easily be rejected for good faith of the officers because the law was clear that a search of an object cease from a person within its immediate control has to be contemporaneous and an hour and twenty minutes is not contemporaneous that's not the case here what we have here is an item that was taken to cell phones from mr lustig's pants pockets aside from thomas we have a case that was cited by mr lustig in his opening brief on page fifteen circuit the second circuit and the third circuits have all sound the same which is even if there isn't a binding appellate precedent within the meaning of mr coleman's briefing meaning a case on point from that circuit that supreme court  could provide that already for officers to objectively and reasonably rely on the law i ask you the question i started with him which is we have this car phone problem that i think you have conceded that at least there was a problem issue below and i don't mean to make an exam no it was a great state was raised in a motion for reconsideration it wasn't something that was really developed before the district court but the benefit of hindsight had we looked at this again i think we'd come to the same result which is that we have some problems in physics and proper concessions broken so now i mean now that we have that concession i'm struggling with how we at the oppose level when the record hasn't really been developed on this can actually figure out what the fruit of those searches was and if we need to remain and for that do we even get to the pocket phone issue until we've figured out what the fruit of the car phone search is i guess i have two responses to that on the group question that's really goes to the harmlessness question because here i think that understanding that the inventory phones were improperly searched the question is is mr listing entitled to a remedy if there was fruit that inspected other actually support the count of conviction and why shouldn't it be the tenth circuit rule and other circuits rule that you look at whether the plea bargain still would have happened whether it would have effect the bargain affected the bargaining and his decision to plead guilty and that's because  rule so why should we do that today it hasn't at least clearly if you look at some you know i agree with you i don't think we have but we now we're faced with a case where it might actually matter and doesn't that will make a lot of sense what do you have any reason why we shouldn't adopt that rule  i think you know it gets into the subjective intentions and the mind of the defendant at the time that the please take and if you look at for example the dog canine discovery case it was a conditional plea where the defendant was permitted to appeal the denial of dog discovery that discovery training discovery and the court found that it was harmless you can imagine a situation where defendant although it wouldn't in the objective sense in taps any of the evidence in th case would feel strongly about some issue that it would truly end and i mean just a court judge could make an assessment that something is so tangential but when here we had you know there are i think two counts and in the indictment he end up pleading guilty to only one but when there are two counts in the indictment you have to expect that maybe the fact that there were two made a difference and if the evidence of one of them even if it's not the one he pled guilty to it goes away and maybe it even affects the other one we don't know i mean certainly if it infects the other one then the whole thing clearly goes away but if it even if it affects only the other one that he didn't plead guilty to i mean that's a difference right in the bargaining i agree you're i think that even if you look at it within the rubric of whether it was harmless beyond reasonable doubt the language that was used in signs by this court for example i acknowledge that it's tough for the united states to prove in the conditional plea contacts that it didn't matter here you know i would just note that the united incumbent upon the district judge to then make the harmlessness determination it's simply the united states has failed to shoulder its burden so the defendant gets the benefit and is permitted to withdraw felixstowe so why should don't we need to here at least for a determination of what the fruit was of the carphone searches well if the court finds that it was not harmless beyond a reasonable doubt or at least the united states has not proved that because there's a fruit issue i don't know that the district court needs to make that fruit finding to determine whether the defendant is permitted to withdraw from the peel i think it just goes back and the defendant well that's interesting i thought maybe you should have a chance to show so that really there is no fruit here that's significant and then we could figure out whether ok that means this is harmless but if i mean if i have to decide it today i don't think we know we can be confident at all that this evidence was you think we ought to standard which is more adverse the government and then the tenth circuit standard no it's not more diverse the question is who is making that determination so i think the proposal would be that if this court can't determine in the district court gets a shot to figure it out and i don't i that's not how i i think that the conditional plea is structured if the united states feels to establish its burden that the  was harmless beyond a reasonable doubt i think it goes back to the district court whether the district court to turn and that's harmless or not i don't think that's part of the inquiry that's the inquiry that's before this court though we would need to you would have vacate the plea instead of leaving it to the addresses your question of whether you even need to address the pocket so an issue if this is remain ended obviously the landscape of what evidence comes in against the defendant will impact his decision on whether to plead guilty makes sense i know in the sentencing context for example if there are multiple issues and one is dispositive of the sentence the court can nonetheless in its discretion which the other issues because it's likely to recur i think that's the situation here we know that when we go back to the liberty of the search of the pocket going to be an issue that probably is right because he won't know whether to withdraw his plea until he knows whether the pocket phone evidence it was in part whether that comes in but why would he need to have a fruit determination also before he decides whether to withdraw his plea i mean it seems like we have a legal question about the riley issue in good faith maybe he needs to have that information but he may also be needed to terminations about what the fruit of the carphone search is and i think that's the sort of weighing that defendants often have to make mr lustig having prevailed before the court of appeals and now gets to talk to his attorneys and handicap what he thinks his chances are in that are on the analysis and i don't think that the district  didn't have to guess that cell phones were different than other objects or to reject that container analogy title three and the stored electronic communications act says that you have to get a court order to look at that to look at those kinds of things that's what title three distinguishes this case as well let's let's not lose sight of the fact that these are officers who as a teen set out embarked on a sting operation proactively in a premeditated way and didn't didn't just  violating the constitution searching the cell phones but by the government's own admission eroni asli used the community caretaking function on multiple cars for multiple suspects that day so illegally code cars illegally did inventory searches that were pretexts for cost of violations and all of these things every step of the way were fourth amendment violations up to and including the search warrant that they got fifteen months after the fact which is also an admitted constitutional violation so never before not only with the court the pushing itself out of line of the supreme court of the circuit whatever they did they were having underage girls used for sex i'm sorry whatever they did they were having under age girls used for sex whatever the officers did yes i mean it's wonderful to see how bad the opposition rather have better client well i mean look there's always a there's always a crime under under underneath you know what brings you up here to the court of appeals unless the court is saying well i'm not i'm not saying anything i just think that the the brush the absolute is being bad people isn't the answer the question that nobody has to say that the officers are malicious you know we're not this isn't a tort suit then we have to look at the officer's conduct and so the point is that i'm making is not to condemn them as bad people but to say that never before has the court said that when officers in a premeditated way commit to some violations after constitutional violation by the government's