protect people not property or not places while we not bound by our in re application i believe that you know down by the two thousand and ten opinion if i can refer to it yet by that looking at a different type of technology are they not they are one of the privacy interests or the same it's to me i don't think you can say that whether you learn everything about me by putting where i go where i travel  putting a beeper on my car as opposed to taking my phone and after the fact going in finding out the exact same information through the use of a cell phone technology which as you saw in riley the court acknowledged it  meter into your phone which is something you carry with you not only on the public highways you carry your home to your church and to your city god into the rovers into your political affiliations you know and i think those are the just in june as they talk about justice we talk about how no twenty eight pages worth of information was for beyond you know what a person has a reasonable right to expect privacy in this case the government got fifty six days tower was approximately three hundred yards away from his house and he could place them saying this is where it is and they use that information from that to not only place him in his home but obviously then to track him down the parkway  i want to go back in time and the record seems to me up through three spy vs and we create where he went so we're going to do something the government wants me something they could never do before which is to follow and spying on people after the  fact and that i think is qualitatively different than what you know if you want to go to the founders what they could do from your around or what they talked about and not some town oh well there's a pretty solid group of court of appeals cases following smith that seems to go against you have how do you deal with that well i think the issue there judge is is when you look at just the sort of words as it is this third party consent doctrine is is is really needs to be reexamined for a couple of reasons i think the it's ok to wiretap phone systems of doesn't happen inside the house right and that was a relatively new technology at the time and it takes forty years or so for them to get to cats in the sixty's and go like you know the fact that they put a listening device on top of a phone  rather than using a spike mike that's not something we're prepared to say it's a meaningful difference because what we're looking at is the privacy interest of the person of the citizen of the people and what you have here judge is what smith is looking at in th and even if you look at the idea that well you know you have to go to herself how are somehow that they're seeking that record to turn over you know and that's the new jersey supreme court case talks about and this court talk about two thousand and ten it's the premise of the third party street you have your search warrants and you're going out and then some of those well you know the search even though you've got a match or to do this it's not good you want to want to say that that doesn't you know going to stop that type of behavior because there was nothing that they did that was not in good faith to different there and the delivery of erroneous jury instructions together denied rabbi epstein a fair trial i'd like to try to touch on those points first the explosion of defense at and so by pretrial memorandum and by rulings a trial the district court flatly banned the defendants from offering evidence or cross examining to inform jury about their own sincerely held religious beliefs even our belief is a mental state establishing reasonable doubt about two of the offense elements in the charge offenses so wasn't ramana i don't follow the motto ramana which was which was my case i remember it well from years ago was on a justification case that was and that was not an exclusion of evidence going to any element of the charge defense the defense romana wanted to present a good lesser evils justification which to say what they believe is essential goodness the judge should then instruct the jury you need peace and we're also pathetic to religious belief that a religious belief is not a defense this is not a you know there's no exemption for people who commit a crime because judge can instruct the jury on their proper role and not but that's an instructional question that you can't exclude defense evidence for that reason one of the one of the things you brought up was issue of consent and that i take judge wilson excluded  viewing consent as a permitted defense that is not what was going on what the defense position was with respect to the points i'm arguing what i'm saying is that this up with an offense element that be held against his will and for a conspiracy the defendants must have agreed to hold someone against that person's will and so whether they believed that they would not allowed to present evidence about what what the docs jews belief that what the defendants actually believe what a government expert claimed orthodox jews believed and then the defense couldn't cross examine or offer a counter expert on that that aggravated the hour dramatic being the transcriptions if you read them from around page forty five to around page fifty five of the government supplemental and it's you can see that there is no that it was very much a dispute of a question that was plenty evidence on which the jury could have had a reasonable doubt about whether there was any agreement to hold and that the evidence on that subject that was relevant should have been a good subject a problem in the instructions on the  especially when filtered through the agreement requirement whether there was agreement to hold for one moment longer than extortion would require this section twelve or will no have a temporal requirement yes but it yes as construed by the supreme court in  i would also talk about the construction of constructive amendment on the purpose which goes with the whole but my red light is on we have a lot to talk about i'll continue or not as you as you wish to draw from anything i've not heard a question thank you thank you its entirety is simply not the kind of overwhelming evidence of guilt that would readily lead us to find that the guilty verdict actually rendered in this trial will surely unattributable to the error that the six fifty four said second that there are very clearly applies to this circumstance defendant who was not involved in most one half if not address the merits of the fourth amendment issue but this court really first of all number one the really can't overcome a good faith defense in this case he says well states were involved in getting the order it cason this court's decision which which is his most recent pronouncement on the a good faith exception said that the fact that the aliases were consulted by the agents in going out and putting a beeper on the car something that the supreme court had not prohibited at that time but lawful and there was no possibility of that because at the time in twenty fourteen they would have been looking at this court's decision and twenty ten in the application case they would have been looking at knott's and carol all cases that dealt with you know monitoring someone's location on public public streets and those cases would have told them that there was no risk more expectation of privacy  violate the fourth amendment and why is that cell you know the most important distinction i think between this case and cases like jones off point because that was clearly a search  crucial congress has rabia on the fourth amendment issues that are involved in this case they wrote the story of communication at and they said oh right subpoenas for third party records in other areas like credit card information or our utility bills we could even get a private security camera video with a subpoena which which obviously shows someone's location and not disclosure of that information so all right my argument to take a step back is number one there's no search here because the government hasn't invaded any  that's protected by the firth and then it and that's for two reasons number one they're generally it's not interest in your location on public areas and that's what nots help but the government could could follow you around if you're traveling on a public how do you have absolutely no expectation of privacy that the first amendment is going to protect for that reason and also you don't have a reasonable expectation of privacy a location that's right but the government here is not investigating they're not conducting surveillance at all they're not following you around to the recent truck to your location that you wanted to that is a fundamental difference  by the i read tronic frontier foundation which of course is making the argument that people have a reasonable expectation of so you say that victor right and he's another important point as the more recent case of point out when you sign up for cell site service you know you get the information from the cell site provider and they tell you in no uncertain terms that they collect this information message and information i mean yes it's true you know it is a test of the defense location but this is a contact this is not without getting into the content of of the person's communication so we're just getting of the government i'm going to address that to draw instruction issues that were raised let me start with what i think it's a pretty easy one in regard to the instruction that that judge wilson gave at the very end of the case  and that it is we don't really know from the supreme court one crucial period of time is because that's not what the case was about so no case is really sort of decided and they're trying to take one factor from barry test crucial period of time it's holds for ransom or so the point is the whole thing has to be purposeful and it has to be different from the asportation but it read these cases we hadn't begun doing so in the in the one that they can see we are seeing you can see that we proved the guy when it was supposed to have been going from great us every status in new jersey so that's clearly separate from the whole thing they were going to do to him they were going to tie him up  thank you donna your honor i don't know that in the government's response they didn't do a little with what is the critical issue here which is the privacy issue and they try to get around jones i say well it's that's nine states but it's over thirty percent of the population of america according to the census two thousand and fourteen statistics that's one hundred million people and if one hundred million people have that expectation and have that right under state watch i don't think that the government come up