a confidential affidavit a little of ation counsel nodding i hope everybody's aware that ass things stand we are being streamed live to the four corners of the like that remember it isn't real time it is being streamed live and if you have to allude to something that you folks know a lot better than we do it so when something is sensitive just put a stop stumbles onto people they were unaware of any time they weren't aware of and then continues to record the title isn't this just a generic plain sight  some place hearing so right i understand what you're on i was getting at the government did say that the government alluded to fourth amendment law and said that well you know if you were properly in a place and you saw evidence of the crimes you can certainly see is that that isn't true under the fourth that's plain sight right at this point so i'm going i understand now what you mean by plain hearing that does not apply in this case there's a title three case which is a more strict but also taking that argument saying well it's just a plain sight case in this case what happened wasn't just that they heard something and then they tried to introduce that statement at trial they heard they kept listening they kept listening they followed up with that and they made a rush in and found evidence that would be like taking a plain sight case and saying well if you see evidence of a crime you don't have a general warrant to search  so you haven't followed up on that part of the argument you are following up on the on the pa the same but even then it is you know it's not playing sides right so i don't want to loose track i you arguing that in fact there's a different standard applies apply a side doesn't apply to title three well i don't think it applies to title three title three is very strict congress was very clear that we're very concerned about the confidential the confidentiality of communications of discussions among people not for phones or objects but for people and so far you're set up a very specific process that specific that under jare dano the supreme court said that if the proper one let's say let's say the government gets a pop or why a tough one and am the guy under title three i mean yes we are because under title three to listen into the conversations there's a process the government has to follow it there is a different kind and i am what has the government done along at that point zero is supposed to take an indication of crimes and finds out that way and just ignore it or about to then follow up and that's what the  i can well let me actually is a somebody isn't that they should not be able to use and yes because title three requires a specific procedure and it it's not just that you got to listen in to this particular phone and whatever you hear on it if it's related to a crime you can then use in the future that's not the system congress set up and in virtually all the cases cited by the government the defense where it was someone different or someone not listed in the title three affidavit that they heard it was the same scheme the same conspiracy in this case it's a completely separate crime and there's no i'm not buying it if you're saying under my happened they pick up the phone they list they listen then they hear somebody else talking i'm going on to them the phone has been lost it's now because mused with somebody else and they have they don't know it's somebody else if you're telling me that they can't use that i'm just not it now the title three is very strong case so even if they don't know that it's somebody else they listen and they finally by the end of conversation realize must be somebody else they can't use that information that's your position has questions let me try to frame a question along those lines sivits sense that he like let's say the government gets over a wiretap following all the procedures that are necessary for strict compliance and they start to listen to a cell phone and the speaker says right at the outset we're going to kill victim x tomorrow at one o'clock at the train station ok and then later in the conversation they hears something else and that they realize well this is a different guy than the person that we were thirty that were to happen that and they immediately cease they decided to stop listening but then there was a shooting in the train station is the government not allowed to use that information that they first heard well you think first heard but i disagree with judge kozinski that there is no distinction between what you first heard and what follows up once you know as the government in this case nine i should nothing about it the question i keep asking the same questions i was going to ask you can they use the national conversation i mean you know i you know you keep resisting and giving the answer but answer just go now what is the i asked the judge ruled the initial statement is different than the subsequent we didn't ask you about the subsequent we asked you about the play here falls into that category the government didn't realize for quite some time that there were listening to different parties is not right well it's unclear when they know well you could you could have clarified you could have asked for finding some that did you did you know what portion you know you need to point out what part of the conversation you think should be excluded some parts of it are excludable because they should have hung up the phone they should not have listened then after they realized it was a different party you need to point out what portion of the conversation that has have you done playing with in an area that's a bit uncertain is that it's a variation on plain plain view and that is they start the government has a legitimate wiretap they listen to something that turns out to be unrelated to the purpose for which they got the wiretap when they first hear it they're totally unaware that it's unrelated but then pretty soon they realize or should realize that they're listening in on things for which they're not authorized to have the wiretap and it seems to me that as soon as they know or objectively should know that this is outside the scope of the authorized wiretap they can't use it i think they can use the stuff at the beginning when they didn't know what i'm asking is if that's the rule that we come up with what happened at trial or in the trial court actions say and is that is what happened something that would for closer remey and so that the district judge could then apply this rule if this turns out to be the rule that we think is the right one if this is if that's the rule and i think that is the right one and the  hearing a little bit of well maybe since you guys didn't put it in front of the judge and make the judge decide on that basis you're here chances gone but maybe it wasn't your burden to do it maybe it was the government's burden to do it or maybe we should as it were not have a sneak attack on everybody this is not as we know the rule is at the moment a little unclear if we make the role clear maybe everybody should get a chance to apply it but i would hope that that would be true but the other part of that is that there was a lot of eviden responded and it is the government that had the information about when it specifically knew what specific conversations what specific evidence would have come to light after they knew they were listening to a conversation they should know defense had none of was clearly and not aware of a rule which doesn't exist about how to handle cases like this in mr kerry should not be prejudiced wise wise not just like any other we have to make an that so much of this case is under seal the government there is a con the government did not give the defense in discovery and it's the government that bears the per the burden of proving it's admissible and the defense objected and for portion of the evidence that the government obtained after it knew it was a different party and you know if the government if the government has come up with evidence as to what that let's say we do are you man you know know what the rule is but it's why isn't it still your burden to prove what is inadmissible well i think it using our hypothetical if we have proved that they have collected evidence that they know was illegal to collect it would be the government's burden to prove what evidence that they collected that was in fact legal and that's why i'm saying your honor as far as i know there's no evidence on this right and i'm not aware of no evidence on that i could that says a day that it was even a day pass where they realized it was a different party it  they absolutely know that it was not related to the conspiracy they were investigating and this was not a person that they had a wiretap authorization for so that you have a sense that the evidence is why may please the court peter co for the united states the district court correctly denied the suppression motion the f b i was investigating a particular organization the obtained a wiretap that establish probable cause a necessity in relation to that organization they were intercepting a phone that they were lawfully authorized to be intercepting and as a district court found the excerpts of record page twenty one they reasonably thought that the drug activity they were listening to might still be related to that when it was issued but at some point they no longer reasonably think that do you agree they do not think that way after the seizures after the end of it so you're contending that the evidence shows that the government never knew them during the entire time they were i believe that's a misstatement that's correct what happened is age males are stated in his declaration at some point after the call started being intercepted and his declaration that page ninety eight ninety nine of the excerpts records at some point after the call started being intercepted they within the timeframe in which they were intercepting calls of the seconds and things after an amount of time that i do not recall exactly we concluded that the person using the fourteen was not ignacio strada we also do not know the identities of persons calling  fourteen however because i knew as could be a had used the fourteen shortly before and because almost all of the calls over two hundred fourteen were in my experience obviously drug and drug proceed related and still consistent with the type of activity that we were investigating i thought the callers and calls might still be affiliated with our known targets or part of the criminal activity i was investigating now might is a sort of a weasel word i mean there might be invisible people visiting this planet might arised for him to say what might have been doesn't doesn't doesn't save you well i still think you have the circumstances as well that go into whether or not this is a reasonable belief and if the district court found it was a reasonable leave you have  but the district judge i think did not have in mind the test that we seem to be moving toward which is to say as soon as the government knows or should know that this is not part of the authorized wiretap the government can't listen anymore because i don't think the district court applied that test that's that i think is the relevant test fair enough but i still think under the circumstances if you look at whether or not this belief by agent mulder was reasonable it certainly was reasonable you have the fact that mr estonia's drop was on the phone just shortly of that might be appropriate if and we certainly have no objection if you feel that's the appropriate way to go the problem i have with that is that it remains on an issue separate from the motion the issue that was raised in the motion to suppress this is now issue about the execution of the war and whether or not they properly complied with the one or the order the title three quarters the issue that was raised below was whether or not they established necessity for the order and whether or not they needed to go back and supplement that showing in the city once they started intercept unknown persons and that's clearly contrary to law so if you're reminding your remaining on a separate issue from what has been raising litigation and we're just relieved and not wages actually kind of a tricky question we sometimes say well you it once you make the claim and here the claim might be the evidence has to be suppressed you don't waive arguments you waive a claim that you made a claim and all of a sudden there's a new argument that shows up i'm not sure it's waived it's a tricky question and sometimes i just say that we are not entirely consistent in applying our waiver rules i agree there is some vagaries there in this case i think though i mean i don't think the rule can be that if you do a motion to suppress you preserve every suppression claim that relates to a wiretap that just they can't possibly about every suppression argument the relates to the suppression claim i would say still the same thing i mean if you can't preserve every suppression argument can't be that if you move to suppress  suggests that that is not the same as saying you knew or should have known but of course the flip side and so the question i have of you a very quick to agree with him or at least not  argue against it i just wanted to i know it's just an answer here that i just want like to know the government's position on this if an agent sings this might be somebody else does he know is a situation where he knows or should have known it's not somebody else i don't know if he thinks it might still be there it might still be there somebody affiliated with the original target does he the with a target i have some doubt cracked and he outlined the reasons why he thought it might still be related to his targets and it's possible to think of my thinking it might still be the target this is not  knowing it's not the target correct those are two different things and it isn't an objective or a subjective test that is to say he has known reasonable deal for in front of him is that enough or is it an objective test was to whether he should have known i believe it would be an objective test and so for him to say might that at least saying it was my subjective point of view and it might or might not have been a reasonable point of view well certainly it was his subjective point of view but i think he also outlined the reasons sure why had i just understand and it may well be that the government can satisfy the test so that it's not a situation where he knew or should have known at this point i'm not sure i know enough to decide whether or not the government satisfies the test which should you  they had the recordings and the calls as well yes they did whether or not i don't believe they had the call from the original underlying wiretap the already asked me organization wiretap they do not have those calls because  different that's a different question they asked for eventually hearing on the question of when it became an reasonable for them to for the government to believe it was still the same party now mr kerry's attorney argued that at some point it became unreasonable and it was incumbent upon us to establish where in the sequence of events all these things happened but he did not request never mention hearing on that point but he did make the argument he did but again this was all in terms of the necessity argument that's what everybody understood it to be not in terms of now we're talking about the execution the war whether it's probably complied so unless the court has any further questions  starting in the second line the intercepted or second sentence excuse me march tenth to the seventeenth the intercepted drug related calls and within that time frame after an amount of time that i do not recall exactly we concluded that the person using nine hundred fourteen was not ignacio the person named there which means that we don't know it could have been march tenth but you have the transcript if you in front of judge hayes ok i got it for you to what line isn't reasonable for agent melter to believe that those calls and that that information was somehow related to the person for whom the wiretap was was given such that nessa set necessitated the necessity showing for the us of that information and that's exactly what we've been arguing and i think it's the government's business where he doesn't he doesn't point to a point say everything look see everything up to the point where it becomes a reason for them to believe it's the because at this point they should have known it was it was no longer the same parties then everything after that point is suppress a book and we can look at it maybe nothing what is the evidence what specifics are you objecting to well it that's impossible to tell without knowing precisely where the district court would rule but that's your burden to tell us where that point is a where you believe in this and then tell us from this point forward the stuff isn't admissible and should not have been used against my client and even standing here on appeal you can't tell me what that has i can't tell you because you have that you have information you have all the tapes you have every piece of evidence came in and you for this of course for not for not for not making that final i thought the disregard for not holding a admissible everything that was said until they realize or should have realized that it was along party on the wiretap is admissible so you've already admitted some of that stuff comes in now you have to persuade me that the stuff that came in after that made a difference what is that stuff what is what is the evidence that came in after that point of prejudice your client well because this was a guilty plea the only way to develop that record would be clarify this when the question is what came in afterwards i know it's not a trial situation because of the plea but i was under the impression that what you work quite thing about was that you think where your client thinks that the agents crowed something that led them to stop the car when the drugs were on the move the youth and you think they must have heard that after or after they should have known that it was a different guy or that i think  what statements were made on the phone that were picked up in the wiretap that led to the crowd being stopped there the drugs that contributed to a conviction of your client and it was that self that was very then what was it and was it heard after other things were heard that reasonabl have indicated that there were all those things just to the wrong guy well the record doesn't reflect that but i can tell you this that given the timing of it the stop of the car and the seizure of the evidence happened toward the end which if asian melcher is called corrected it was sometime in that period from the tenth to the seventeen when they realized they were listening to the wrong conversation that would have necessarily had to have been before they stopped the car sees the evidence but i can't tell you exactly which one because that was the get out of the government has argued here today that they didn't realise until after the seizure after the us that's their position well that i'm not sure that the we have a record that says that and of the excerpts states that on march seventeenth as a result of calls intercepted a sheriff's deputy stopped to be a cool southbound on interstate five and they found the currency in two cell phones and then there was a subsequent search warrant of the irvine residence that's the end of the period from the tenth to the seventeenth now i don't know which of those conversations but i'm going to guess it was conversations on the seventeenth that makes the most sense that the government has argued over and over again that they were acting quickly on information that they received the agents were and that if that's true the the intercepted conversation would have undoubtedly have occurred on the seventeenth which is when you presumably they learned in that period of the tend to the seventeenth that they were like listening in on things they should not listen to and let's say for example that on the very first few seconds of the authorized wiretap the speaker said we're going to move the drugs in a green chevrolet down market street on the seventeenth that's the time when we're delivering the trucks and then the agents found out after that that it was a different person there you know that they were listening to go back could judge kozinski opening question wouldn't they be able to use that we're going to move the drugs in the creek creen chevy statement in evidence that per use that as a basis for stopping the car i