was relied upon by mr prados counsel in the trial court in the district court it was cited and relied upon by myself and three thing before this court however the alexander case is not discussed in the government's rethink what the government did do was recently submit to this court rule twenty j letter referencing the smith case but the smith case just hammers home the controlling nature of alexander in this case the smith distinguished it will smith were different than alexander for the reason that there was a mistrial rationally in the difference rulings on the fourth amendment issue and that's exactly what we have in this presented to the court the government initially opposed to citing to this court's normal decision and crawford said well we're going to i don't know if they said withdrawal but the government basically conceded that so why isn't the case that you know that controlling authority changed it's a different world at that point and that and that therefore the court can revisit that i mean apparently the concession in this case because the government really didn't do their homework and but that being the case but let's just say that but they're still entitled to the fact that there are there was a change in crawford after the mistrial why isn't that as night and day in the sampson case that probation searches are one thing and for all searches or another there's a much less lesser degree of expectation of privacy in the parole search context the there were multiple briefs filed on this issue at the district court level and although mr prados counsel did after the initial panel decision by this court in crawford was handed down did strike two and urged the relevance of the case it ultimately was not the decision that mr prothero relied upon this trip rather was relying on the general unchanged principle that for a probation search that search must be reasonable there must be some reasonable so the crawford decision and in fact mr probus counsel made this point in opposition to the government's motion for reconsideration mr prado as counsel stated crawford didn't change anything that w was held that this was a completely constitutional and legal search so you have at the end of the day law enforcement officers doing what we would want them to do in a search of this nature and how do we know that we know mistrial motion for reconsideration motion for reconsideration granted and then the case went back to trial a second time so that holder has been adopted by the rab court here in the ninth circuit in addition to that the distinction on alexander is have different judges one judge granted the motion to suppress evidence a different judge granted the motion for reconsideration the first judge in granting the motion actually looked at some evidence he listened to a nine one one dispatch ta for the front from the appellate standpoint you know putting in his position that obviously the government knows its case if it concedes that they can't meet reasonable suspicion based on they never talk to the witnesses they didn't do anything remains the same the constitutionality of a search and only the legal argument advanced by the government has changed that's an entirely proper course of action for the government undertake so it's not a matter of once the government stipulates or agrees to that suppression motion as long as the subject matter remains the same which is the constitutionality of the search the government can advance different legal arguments that's the holding of the of briefs filed in the district court on this issue there was a judge levy ultimately on reconsideration denied the motion to suppress stated to government counsel something to the effect of my goodness we've certainly gone through a lot of rigamarole here based upon your retreat are you being too quick to retreat from the question of whether or not there was reasonable suspicion it was a fully litigated albeit on paper or fourth amendment issue and he i don't see how the mere fact that the government enters a concession right that there was no reasonable suspicion the government stated this was a troop rotations search a search conducted without individualized suspicion the government stated that in writing to the district court so