it please the court my name is mark heller and i represented randy hightower in the district supervised release hearing and today i am arguing that the exclusionary rule should be two circuits the th circuit and the a circuit have both held that it does not apply absent police harassment and my argument is that the arrest have an exception to this rule i think that there is reasonable reason to continue with that simply because the supreme court in often they are simply reinstating the original amount of time somebody was sentenced to when somebody has been granted parole let out of their sentence early release revocation on the other hand is something different somebody has liberty interest is being taken away in addition to what they have already served for their sentence  thirty two point one the right to confront a witness those procedures are different constitutionally protected right against unreasonable search and seizure  good morning in may please the court my name is justin rodriguez i'm an assistant united states attorney for the southern district of new york and i represent the united states on this appeal as i did before the district court the district court correctly held that the exclusionary rule does not apply in violation of supervised release proceedings in light of the supreme court's decision and reasoning in scott since scott for federal courts of appeals have refused to apply the exclusionary rule in in charles created an exception which is not at all i would argue not a political here based on police harassment that exception was after the th circuit decision in charles rejected by the th circuit in the more recent case in philips and that the exception in addition to not being a political on the facts here has no basis in scott whatsoever as your honor has already hinted there are t well settled points of law that compelled judge already coffs ruling in this case the st is the supreme court's holding in scott and the nd is this court's repeated acknowledgment about how the constitutional guarantees governing re supervised release are identical to those of a political to revocation of parole and probation as the courts who have looked at this issue have found the supreme court's reasoning in scott applies with equal force to supervised release proceedings in the supervised release context like the parole revocation context and this is the key analysis the substantial social costs of applying the rule far outweigh any marginal deterrence benefits in scott the supreme court discussed two substantial social costs of applying the exclusionary rule in the parole context and those costs are present in the supervised release context as well st applying t exclusionary rule in the supervised release context precludes reliable and probative evidence and thereby detracts from the truth finding process nd applying the exclusionary rule in the supervised release context would alter the traditionally flexible nature of supervised release proceedings and invite extensive litigation like this to determine whether particular evidence must be excluded on the flip side applying the exclusionary rule  the supervised release context provides only minimal marginal deterrence benefits because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches as the supreme court has observed officers searching for evidence of criminal conduct do so with an eye towards its introduction at a criminal trial and that makes sense for two reasons st an officer will rarely know in encounter whether the person that they are encountering is on supervised federal supervised release before they encounter them that was certainly the case in this case the n y p d officers who encountered mr hightower didn't know who he was at all before they stopped him and they certainly didn't know he was on supervised release nd the penalties that apply after a conviction at trial are often much higher than those that would apply for a violation of supervised release often yes often  maximum thirteen years so your honor in this particular case the maximum for mr hightower was twenty four months but because of an age of violation because of because of the of the underlying crime because of the original term of supervised release that was imposed so he was convicted in two thousand and seven of being a felon in possession of a firearm and judge a cop sentenced him to one hundred and ten months which is obviously much higher than the maximum term he could have imposed on for via years of supervisory and two years of supervised would have allowed three but he got two he actually received a year and a day as his actual sentence and i'm talking about the surprise release yes your honor yes originally imposed was two years you're correct yes a pretty still pretty significant amount of time right two years it's absolutely a significant amount of time your honor but the point is the analysis that the supreme court has invited is an ex ante analysis in which this court is to look at the incentives of the officers at the time that they are conducting the search and the point being that the officers at that time are not going to be focused on whether this person is on supervised release and what penalties they may get if they violate supervised release instead they're going to be focused on making sure that the evidence they're looking for is introduced at a criminal trial and that's where the deterrence effects are going to be felt unless the court has any further questions the government will rest on his b right thank you thank you our two minutes in rebuttal just briefly your honor while the public obviously has an interest in ensuring that people on supervised release are not breaking the law not know that mister was on parole they in effect got a nd bite at the apple by if they couldn't get him on the criminal case and by the way the criminal case is still ongoing there he they have not yet had the suppression hearing for this arrest he did already which is taking place where in the bronx this allows the police to get around the exclusionary rule and frankly encourages them to fail to follow the law so thank you