the electronic search condition that was imposed on this case in this case was unreasonably burdensome and intrusive relative to her fence and her criminal history i want to focus the court on the three factors that bear on th the nature of her offense the nature of the electronic search condition and the nature of the privacy interests that were implicated by that condition her fence she sold thirty pieces of paper mail her prior offenses petty theft of items three hundred and sixty one dollars no history of violence no history of using electronics to commit or conceal any crime nor was there any history of electronics being used by law enforcement to discover anything about her the nature of the electronic search condition in this case it it applies to all of her electronic devices but only if there's reasonable suspicion that she violated the conditions of her release and that there be evidence of that on the device so it actually seems pretty narrow so i'm not understanding really why you think this is such a big imposition on her liberty i'd like to point to two things ok st of all the idea that there needs to be a reasonable suspicion that that the evidence of the violation will be found on her on her device it's not clear it's ambiguous is what the conditions us know it says areas the areas to be searched contain evidence of the supervised release and isn't that what i mean when the device for the area in that context well is a device in the area and i think that's that's really not clear and i direct the court to layer as well but you your whole challenge is based on the idea that this is going to let them search for devices so i'm a little confused it is going to let them search for devices but the but i think what you're on i was talking about is the effort ported limitation on that ability to search if it's if if there doesn't need to be a reasonable suspicion that evidence of the violation will be found on the device it becomes even broader and i think that it's at the very least unclear whether a cell phone or a computer is an area to be searched and i mean i'm with you in terms of disconnect in her crime stealing mail and searching a computer are very different the cases cited by the government almost all deal with uses of computers in connection with  crime and a likely continuation of i should find no connection to the mail but as my colleague just pointed out here there is a condition on the use of this unusual and maybe not so unusual condition and that is that you there has to be reasonable suspicion that she is committing a crime i guess the question then is if she's committing a crime dealing with stealing mail that doesn't make any sense how  does how do we are we supposed to coordinate this condition and condition number nine to make it work or not work that the condition doesn't say there has to be reasonable suspicion that she's committed a crime it has it says there must be reasonable suspicion that she's violated a term of her supervisor or release or that could be anything that could be failing to sew up for an appointment there could be you know missing a drug test negative bad result in a group that's not doing sufficient community service there's been no showing as to why searching her phone or her everything in the house and cars and all that sort of thing that's somewhat similar to this i don't think so you are there for there are many reasons st of all she didn't agree to anything she had no plea agreement in this case she never agreed to anything she this condition was imposed on her  without any real discussion by the district court and the only the only mention of any reason for this condition focused on the crime itself saft all that was said by probation the government and the court was it's appropriate in light of the theft so as it seems that everyone who was focused on the nature of her offense but it's not apparent i can't we just go back to if you assume that this area's thing does refer to the devices let's just assume that for a nd can you explain  such an imposition on her liberty beyond what's appropriate for supervised release to say that she shouldn't have devices searched if there's reasonable suspicion the vices show that she's violating her i think i think the reason is it's a computer or a cell phone which contain and norma's amounts of information of every single kind even though there's a reasonable suspicion that that's put into the condition the supreme court and rightly recognized that that's really no practical limitation at all creative officer can always think of a reason it would be a particularly inexperience unimaginative law enforcement officer who couldn't come up with a reason why there's reasonable suspicion to think that evidence of just about anything might be on her device at any time and i want to focus the court on thirty five i mean i can't i guess i'm not understanding that so i don't think if some officer just said you're walking down the street i think that's reasonable suspicion should search your phone i don't think that would hold up if they found something so i don't i mean reasonable suspicion is a standard that we have lots of cases about i mean i don't think it is nothing well i think there could be reasonable suspicion that she's done any number of innocuous things would constitute a violation of her other supervised release condition can you get one exam well she missed the counseling appointment that would be a violation of her supervisor at least at any time there's probably going to be evidence of that on her phone because her phone has a lot of every single place she's been in the last ever since she got the phone arc of our phones automatically i mean if you have already reason to think she missed the appointment maybe that means she did violators or supervised release maybe that means they should be able to check and i mean i'm not sure why i think that was the other way though your honor if there's already evidence to think that she's misheard that she's violated her supervisor at least then it's unduly burdensome to search her phone because there's no need for it anymore i think that thirty five not really i mean i'm a district judge and it's often the probation officer will confront the defendant and say i think that you missed your your appointment but they don't necessarily have enough proof and the defendant denies it and then they get some additional proof they call the treatment center and then they confront the defendant again who it so what about the condition of not associating with known felons which could include her the two other women who were involved in this current time wouldn't searching her e mails and her text message  explanation by that is the court because these devices implicates such extreme privacy concern is that they contain so much information was it necessary is it necessary to let the officer search every file name every e mail account maybe it is i don't know but the district  has a role to play in that analysis of ensuring that it's reasonably related to her her circumstances her i mean if you were right if you were the district judge and you were writing this condition would you write i think i would say reasonable suspicion st of all that the that the devices to be searched would contain i would make that clear and i think i would also just as a district court judge spell out why the condition is necessary and how it's related to and to you file names or folder is contain evidence of a supervisor lease violation that cannot be reasonably obtained through other means i think i was that i was a ok with aren't you going beyond what normally required as was pointed out by judge bastion she has some coconspirators she's not supposed to associate with certain people if there's evidence of that what's so unusual about that what's different between that and the right for example situation is from court is right and also in carpenter that these devices play huge role in our lives it's a big deal but in this particular case it is really the expectation of it's a devices might have more privacy but she's in a different category of just i mean she's on supervised release so i don't understand why cases like knights undermine your argument about this well i think that in nights there was a nexus because well actually i'm sorry nights  i don't believe there was a computer can but there wasn't a computer but if you can search their home their papers their everything well and there's reason to make sure they're not committing other crimes and they're safe in the community all these things that night says it's i mean yes it's a device but i'd not sure that that makes a big difference well i think the supreme court and rightly difference with that you're on i think the supreme court said the search about a file cabinet or another container is as different from a search of a computer as a card right is from a flight to me it's very different but you're i think i'd like to return to your question too about how every right this condition i might also put in the probation officer may search the entire device if it's not reasonably practical to narrow it further and hill and to more and the the computer search cases from this  restrictive than necessary is it necessary for such a minor crime to have such a broad search capability thank you very much with your phones are somehow different because if we were just talking about a search of personal property there would be no way for the defendant to maintain this argument bets forecloses it seems and for a number of things for close it so phones are not sweet generous in this context one because as we discussed as the course discussing this condition requires reasonable suspicion to believe the defendant is out of compliance with the terms st of as release and that it will be found in the condition but i guess what i'm struggling with all the cases that you cite including which which of course is not a published opinion you got riordan you got bit all these cases and all of them involve situations where  the use of the computer is an important element of it here's this woman stole mail has nothing whatsoever to do with computers or electronic communications they are an essential part of virtually everyone's we go to other parts of the world where people have hardly enough to eat and they got a cell phone it's such a key element of our lives and given the instruction that the statute puts on this it seems to me we're really struggling with just how far this goes what seems to save it possibly is the condition the probable or the reasonable suspicion concept but i'm still troubled by  that i don't find your cases st i really don't how how how if you were the district judge where you are right it this condition exactly the same way that this district judge who did or would is to say absent a warrant supported by probable cause her devices could not be searched that is completely inconsistent with the supreme court's analysis of the privacy rights issue and your i think the best case to deal with the concerns you articulated its it is johnson and johnson is this court's case analyzing a suspicion with search of a parolee cell phone and found it was reasonable under the circumstances and parole the pro condition issue there is imposed by default in california there's no option to it or not it has nothing to do with the character of the underlying crime so long as it is a parole eligible crime that is a standard condition the same was true in samson and sampson that was personal property not computers specifically that condition of parole is imposed by default so you're saying that johnson stands for the proposition that it really doesn't matter what the underlying crime is is just the standard condition as the way it is certainly for th amendment purposes now there  particular crime and a king is a great example of this king of the sizes that a defendant history of violation of supervised release is a is something that obviously goes to the interest in deterrence of protecting the public that is by  i think that is the most profound interest supported by the record here defendant had a very long very serious history of violating term vision going back to when she was thirteen and this case itself demonstrates that she is condit from pretrial super vision one day after being released and was brought back on a warrant so there was a profound interest in supervising her i'm sure the court has read the transcript of the senate thing hit her ability to comply with supervised release and whether or not that term would help her become a functional member of society was the number one concern on the district court's mind that said i do want to push back a little bit on the idea that males have has nothing to do with computers i will not dispute that her purse f did not there was no more involved but as she told that she was giving the mail to someone else who is making the profiles and she claims some ignorance as to what those profiles were but she knew who was being used to make profiles but in any case there does not need to be an access to the particular offense it does not need to be the case that the a particular intense involve the computer it is adequate here that she had this long history of supervised release violations that certainly made it reasonable for the district court to impose this condition that put her on frankly better footing than she would be required to be on  question might be like can this challenge be made by someone else or in another context or like even if it's not capable of repetition of aging review for her it might be capable of repetition evading review for her but not for other people i'm wondering like how much that her particular facts are necessary to your defense of this provision or whether your defense is really anyone on supervised release could have this condition it kind of explains itself it's reasonable on its own of the public it's hard to imagine a situation in which this wouldn't have that nexus but i don't think the court has to go so far as to hold that per se in every case this would be a reasonable and adequate condition but if we need to get into her particular facts then how does this not kind of help her on the movements question because it makes it more likely that we need this figure out whether she's ever going to have review available and it seems like she keeps violating before we can ever get there and i think those are two different questions is the answer capable of repetition and avoiding review does not look to a defendant's hyper criminality the fact that she keeps violating supervised release so quickly that she moves the order i don't think is what gets looked to in that analysis frankly the move this issue is not something that inspires  pounding it's it's just it's strange typical practice is to file a notice of appeal from every revocation sentence i myself have done that i've argued many cases that have five case numbers by the time they get to argument because of someone who does justice and so i think we're in a perp lexing position that's set at minimum assuming that it is within the court's power to review i do think now all of the facts of all of her violations are in play because the actual sentence she's serving now is the most recent one that  justified by additional facts in the record so i think that at minimum is that you believe that the law on this issue is clear or something more needs to be said on the permissibility of the condition i think under the th amendment that's very clear given the supreme court and this court's precedents about suspicion of searches and the holding events that supervise really sees are on the same footing as of the th amendment are pretty well understood johnson makes those clear in the cellphone context and she's in the same footing with respect to the level of explanation needed i think there is a little bit of lack of clarity there reardon and those cases stand for the proposition that no particular explanation is required bear in the context of a condition that was suspicion less at least there suggested that maybe some explanation was required but in this case that's not a preserved issue separate to plain error and so i don't think publication is necessary because the court can avoid the issue by simply saying any error was not played when you make a distinction between cases that women use of devices compared to this which is just a search of the most absolute it seems like maybe the amount of explanation is different absolutely look in any sense in saying this court always looks under carty to whether there is some explanation but the rule is so long as there is adequate explanation in the record that a sentence will be affirm that is the rule that applies regardless however absolutely cases that require monitoring or ex ante approval for use of computers like sales and birth to me and those are in a completely different category from search conditions whether with or without suspicion and as i was arguing the outset certainly a condition that requires some degree of suspicion is is obviously legal under the court's precedents and it was appropriate to impose here other question from my phone and i thank you both for your argument in case the case just start