wiggins and they found a gun near the chase instead of hearing the simple fact pattern the jury also heard a complicated text message drama that included threatening to kill someone pointing guns in people's faces and obscenity laden name calling these text messages which had nothing to do with the facts of mr wiggins arrest should never have been admitted for a number of reasons affidavit for the search warrant was unconnected to the cell phone there were three alleged crimes one had been completed before the cell phone was obtained by mr wiggins and the government knew that from their st more limited search of the phone which had not uncovered anything incriminating the other two crimes alleged in the search warrant were straightforward street crimes there was no allegation they had anything to do with a cell phone or that there be any connection expected to the cell phone this is why it should never have been issued and defense counsel made that clear to the court burglary the restaurant and credit card fraud right and the lot of those materials came through the search of the grand apartment right throughout i'm not challenging the search of the apartment i'm challenging the search for the cell phone of mr wiggins and particularly the nd search warrant for his cell phone there's a st search warrant isn't of his cell phone that i also don't challenge while you were saying those other crimes should not have been in the search warrant application because they're totally irrelevant to the because they're totally irrelevant to the cell phone the the area to be searched the possession of a gun had nothing to do with his cell phone there was no reason to think that the cell phone would have evidence of the crime that the  didn't say they had as any reason to believe that mr wiggins had done that and in fact given they had already searched his phone and seen that his text messages did not begin before he obtained the phone the record actually fraud i'm not sure of the precise date i could check was like sixty i believe it's something like that your honor but it's ten days after the conclusion of the fraud and that's not disputed warrants need to have a connection both to the probable cause and to the area searched and here we're missing that the government instead tried to rely on these sort of assertions that would apply to anyone that people sometimes upload previous phones to a new phone there's no evidence of that here what is your response to the good faith or is basically you taking the position that this was so devoid of probable cause that the agency should have known that irrespective of the fact that the judge concluded otherwise is that the position or are you saying that somehow good faith exception has no bite in the particular circumstances of the pretrial search warrant issued with participation of defense counsel or something like well both your honor there are number of reasons that the government's good faith argument shouldn't sway this court st the government didn't raise it below and it is their burden to raise and show good faith  could have said in any event we had good faith to search the thumb defense counsel raise this argument a number of times both before the warrant was issued and then also afterward which is the normal moment when the government raises good faith this a little bit different here here it would be a little odd to raise good faith that the trial the city rather you were wrong in issuing a warrant but even if you were even if you were wrong these officers had good faith in executing that weren't you just gave them three days exact example in gallopin sent cases back after vacating them for the district court to make a good faith determination in the st instance but because defense counsel did raise these objections before the the government also should have been a notice to this problem that there was a disconnect between what they were asserting as probable cause and the area of the phone the entire poem that they were searching and they took no steps to limit that search to create any sort of nexus but others that's not the only problem here with with mr wiggins trial even if you find that that for whatever reason that that part was ok the text messages here that they used at trial should never have come it this court has a case united states williams that addresses a very similar issue and rejects the arguments that the government makes today the government says that text messages about threatening to kill somebody with a gun shows motive or opportunity but in williams and the same here when the case has a simple fact pattern of  the government hadn't even argued to the jury that the other crimes were relevant for motive and opportunity it had argued something that certainly sounded like a direct and that's why you should convict him well the argument was made that mr wiggins uses guns to threaten people he puts guns in people's faces that's how the defendant uses gun that's similar to the argument in williams and i also don't mind suggests that's that's why he's a guy who needs a gun or uses a gun or has a gun he's not just some guy who was standing around in a place where a gun b issue and the williams court said that that kind of evidence is not relevant for motive or opportunity in that kind of straightforward fact pattern and that makes sense looking at all the cases that the government cites the cases that they it was on the person at the time of their arrest and it's part of the narrative of the arrest or it's the same caliber as the gun that is in the none of these cases address a situation where we have a street stop and then the government of the it was i pulled a grip on her that was one of them another was i didn't do that and then there were many many many many more this is pages and pages and pages of seeding lee prejudicial text messages about a crime that is way more serious threatening to kill somebody with a gun is undoubtedly more serious than just having a gun in your waist when what true judge has done with respect to the government's text messag they should have been excluded and that you did your predecessor counsel asked for repeatedly that your presence account counsel ever asked for limiting instruction on how the government text messages should have been considered by the jury the got the judge let in those text messages those text messages for any purpose so there wasn't really a limiting instruction to give the judge let them in both for direct given but the judge had rejected counsel's argument that they weren't direct evidence so given that there is no limiting instruction to be given the judge had allow them in for any purpose although the record is very confusing and that's because this happened the day the day trial started is when the government asked to introduce many pages of text messages so there's a lot of back and forth about how they're admitted and the parties are still in disagreement about why they were admitted as as the case is going toward summation the instruction the judge gives the non limiting instruction is that the jury can consider the text messages for their truth ok but you you're not arguing that there should have been a reduction you're saying the only thing that the only position was raised below is they shouldn't come in at all and that's the ground you're standing on you're not suggesting that the error was in argument that you're going to i would agree that the prejudice is worse because of the extensiveness of what comes in including all the obscenity is because of the way the prosecutor reading a back and forth with the witness spelling the words that you from the go thank you may please the court system united states attorney kevin trial for the government if i could begin with the text message point and then to the extent your honour's want to further discuss the war and come back to that i think it's important to note that my argument is based in significant part about the alleged prejudicial value of the unfairly prejudicial value of the text messages but her trial counsel her predecessor didn't actually raise a four or three objection at trial so this is on  dollars he's raising an objection as to propensity and this is now days after this is so the government st raises this issue on the th this is now the next day when the government is intending to introduce the text messages through an agent at that point having had a day to sleep on his objection and consider it he says your honor the government is offering these for propensity the judge then give some explanation and he says he the judge the forty three standard and says i assume you're you're raising this to trial counsel says yes doesn't elaborate doesn't say the crimes are more serious doesn't offer any color whatsoever on that argument other than to accept yes for three the government having the court having raised it rejected it hearing nothing about why it should do that and the text messages were admitted whether that goes to the standard of review or rather just to the purported as my adversary would have you believe obviousness of the unfair prejudice here i think either way what you're left with is a record where the parties at the time given a five am stop drug area cash in the pocket flight from police fire fighting stance all of this didn't appear substantial to substantially outweigh the obviously probative value of the fact that this defendant had possessed a firearm in the very recent history in his very recent past i think my adversaries coming very close to suggesting that there should be a person a rule that felon in possession cases the government can't offer for a for b evidence that's obviously not in the rule the rule doesn't reference t complexity of the case or whether there are other crimes charged or whether the government is offering it for more than one of the permissible purposes for a for b and for a for three act in conjunction to permit the government to  that backwards for four b and four for three act for three rather act in conjunction to permit the government to introduce evidence for the listed permissible purposes full stop so to the extent my adversary suggests that because there is no case exactly on point factually for a for b doesn't apply that's just nowhere to be found in the law and i suggest the courts will reject it williams is distinguishable for a host of reasons i think the most important one is that the government there made those  who the defendant really is and also the court was obviously troubled by the fact that the government had represented to the court that was going to link the defendant to the guns in the room which in the court's view it never did here in the government's summation the government expressly said you may consider this for access and access and motive full stop there is no part of the government summation where it it offered this for an improper purpose now in the government in the defense a significant part of his summation was spent on the fact that the gun was rusty and old that's tantamount to a mode of argument why would he possess this why would he possess this piece of garbage that was the argument he made to the jury on rebuttal the government stood up and said you know why it's in the text messages he's threatening people with it whether he has to turn the cylinder to fired or not is not relevant to the uses for which he's putting his firearms it was an appropriate rebuttal to the argument that that trial coun now i'm happy to continue on that if there are other questions but i can just return very briefly to the to the search warrant point as well that's ok with you on you don't disagree there was a world three ruling there was raised by the court and then decided by the court sort of in the same breath he asked i assume that's what you mean i assume you assume that's part of it truck counsel said yesterday is and then the court said denied i find that it's not substantially outweighed and he admitted it and again that's  and sixteen on the question of the warrant i think there are a couple of incorrect assumptions here the st one is it's true in a general sense adversary cites clark this court's decision and clark clark says it's true in a general sense it's the government's burden to show good faith but what that means in the context of a warrant is quite different than what it means in for example galpin where there was no warrant that was a probation search  the government made a good faith argument there what leon says and what clarke says is a warrant is presumptively valid and reliance on a warrant is presumptively in good faith unless one of the four categories is met now this is not a a situation or it's a question of law of good faith exception well it's not it's a it's ultimately a question of fact in the sense that that the defendant has to show that one of those four limited circumstances laid out in leon applies and this is not there's no mystery to this is obviously well trodden path here so she's moving to suppress a warrant or four to say that the warrant lacked probable cause in order to do that under leon she must show that one of these four circumstances existed she made no attempt to do that in the opening brief did it in the reply for the st time by suggesting facial invalidity or  exceptions sort of in detail and addresses each of them and for this one she notes that it both encompasses a facial component what's on the face of the warrant but it also encompasses an intent to deceive on the part of the agent so there is  think that's largely inferred from what's in the warrant but she says why would the agent attempt to do if the agent would be i thought there was a dark exception if the agent doesn't have the right facts or suppresses information or it's false information into the affidavit that's one sort of situation but i don't think anyone is alleging that here the information is there either persuades or doesn't persuade the judicial officer that there's probable cause and i take it if it doesn't persuade us for example that there is probable cause the next inquiry is is it so far off from probable cause that no agent could reasonably rely on it where is there room for the agent deceiving in that i think you're right and i don't think it's i mean i don't mean to belabor the point i just point out the judge reggie notes in this in this particular category set forth in leon she said the concern is particularly acute when facts indicate that the bare bones description was almost calculated to mislead and so i mean i'm not i'm just pointing out that it's i don't think that is meant i was arguing that correct correct but i think that's actually a problem for her and that's part of what i'm saying about the import of the decision and clark thing and then the search of the grant house where there were credit cards apparently didn't belong to him given given access violation of the credit card access statute  but it's odd that this application with those other crimes was presented during the trial only for the nine hundred and twenty two dollars g so that supported probable cause for the applicant for searching the cell phone more deeply than the  search right and so that's part of the question is kind of odd that during this trial just from the one hundred and twenty two g you throw in the credit card fraud and you throw in the burglary which produced the apple the stolen apple  computers in the backpack but then he was never prosecuted for it for the either of those it's just an odd circumstance where one should just stick with the nine hundred and twenty two g information when you're going during the trial for a nd search warrant from the well i think there are to the extent you're asking whether any of the crimes identified in the warrant would be sufficient to a stop to have established probable cause in the warrant i think that may well be the case i didn't personally draft it and i didn't do the trial below so i can't answer what was in the usa his mind at that moment as i read the warrant what i understand it to be doing is saying judge reviewing judge agents the the affiant here has information that this defendant was involved in several crimes and i'll note there's nothing in the warrant that suggests that the access device charge access device allegation was a point in time crime i mean there was evidence that there was access device for out on or around may th but there's no reason to believe that had been completed and what the warrant said is we have evidence to believe he's involved in this so i think that's an important distinction to make from from what my adversary said but that the government is saying to the court we have evidence that the defendant is involved in all of these crimes and here's the link to his phone communications with coconspirators potentially photographs g p s data all of these things none of which would necessarily be smoking gun evidence but burglary in the restaurant so yeah well i mean to the extent that the government obviously believe in the district court agreed that it had that the government had probable cause to believe he was involved in those crimes and they'd be evidence on the phone and so of course he wanted to search the phone for that evidence in hopes it's always in hopes that you're going to find evidence that leads to a charge or it's a link in a chain that leads you to a charge here he was convicted at trial he was sentenced i can't speak to the state of the investigation of those other things but matter that this was presented to judge characters as if you'd gone to a magistrate judge with the same information and said look we're investigating all three of these crimes one of which is actually already charge others not either gives probable cause or doesn't have that search if it did and you obtained evidence and you charge the fellow with other things that would be fine and if you didn't you'd have suppression problems in those other cases or whatever it is nothing that prevents you from listing the three crimes is that that the argument actually and i think yes and there and here there it's i guess i have one other question about this is for any of these crimes i'm a little puzzled you're saying there is probable cause to believe he's involved in these crimes and and therefore there's probable cause because people use cell phones a lot believe that he's probably talking to his coconspirators about those crimes on the phone and therefore we can search the phone and that's not the allegation that's in there then what is it that links the foam in other words just as you can't say we think this guy is involved in a crime and usually a find evidence of people's crimes in their houses but we  probable cause to search his house that's not an automatic sure you have to have something that says this is why we think there is this particular thing in the house so what is it that links that says there's a reason to believe that on that's not applicable to any guy involved in these kinds of crimes who owns a cell phone that suggests this fellow had something on his home or st st of all just to sort of set the bar i think part of one of the premises underlying my adversaries position on this is that what the government has to expect or tell the court expects is is devastating evidence or smoking gun have just some evidence of exactly why what might suggest that he ever used the phone in connection with stealing i pads on  restaurant yes so on may th just as an example may th there's a search of the grand residence they find the box with the access devices in it and the other materials the phone records that the government had obtained under the st warrant which is not being challenge here showed significant correspondence significant calls between the defendant and the two women whose names were on those access devices now the mere fact of their communication is obviously evidence it's not damning evidence it's not evidence that would support an indictment likely but it's evidence of the relationship that supports an inference that the three of them are involved together and if they're not talking and once you've got the evidence from the st search that they actually were talking to each other and you have independent evidence that they're involved in a conspiracy together it's not unreasonable to think that there would be conversations about the stations social media etc yes that's right you're on  you know for the question thank you  minutes thank you and just to start with judge lynch's question i think that goes to the heart of the matter there is no link to the phone that's the problem with the warrant and the one thing that the government articulate says that mr wiggins communicated with his girlfriend that's grant and the their other friend before he got this after that alleged crime when he had the cell phone isn't enough to show that there's anything else on the phone linked to the crime it's  unsurprising that he communicated with his girlfriend that's not a reason to search his entire phone particularly when the evidence showed that that crime occurred before he got the phone the government says that they don't have evidence that it didn't continue occurring but that turns the whole thing on its head they need to show probable cause that the phone is linked to the crime not that there isn't evidence to show that it's not that's the opposite standard and just a small point on the warrant issue galpin in which the court sent it back for continued contact over the phone between grant and crawford and the defendant and crawford in grants names or other fraudulent credit cards doesn't exist to show some kind of connection with the  the warrant st the st warrant in other words a connection between look we looked on the phone and because in the in the st where you guys you allowed us to look at who was talking to whom on the phone or texting to whom and now we see the grand crawford are in there are a lot we don't know what they were talking about they're in there a lot we know that they were involved in the how in the apartment that was searched we had the credit card fraud evidence doesn't show some connection to the fruits of the st search for why does the fact that there was evidence found in the apartment on a given day about access device fraud mean that that access device for it must have ended then that's usually not the way it works