of evidence and i propose to start with the constitutional issue and at issue here are two i phones that recede under a warrant providing officers with unbridled discretion to search through how and anthony taylor is clear but i want to nail it down here you're not arguing that this is a general war right here arguing it's overly broad what i'm arguing your honor to parse that this nation slightly is that the defense to be taking the position really from the start least from the point of the motion to suppress that this is a word that was overly broad  we should be sufficiently refined in our arguments at this point in time to know just what it is you're attempting to suggest to the court but you know it's so so since since the responses to my questions have really been i'm a sick quizzical let me ask this it is clear from the record is not that you are not challenging the execution you're challenging the word itself that's all right now what is it if in fact the argument is that the word was overly know how language purports to be something that what is let's start with this what does the word itself say with respect to the cellphone yes it says that any and all cell phones used in the further ins and then it list about twelve verbs trafficking storing selling illegal acquisition possession sale trade distribution  but but my point is utilized in the furtherance of isn't that language of limitation the word doesn't say the women get every cell phone within sight or within earshot it says cell phones utilized in further ness of the illegal and all of the rest of the language refers to forms of drug transactions or drug trade that sounds like a which to thing wish cell phones are within the scope of the warrant from cell phones not within the scope of the warrant because there's no way to look at a cell phone with very rare exception and say ok there's reason to believe this phone was utilized in the furtherance of drug trafficking that's already let's let's look at let's look at a case that you i believe have relied on to a considerable extent in your briefing and that's the griffith case from the d c circuit majority stated that the word in that case should have been limited quote to devices owned by griffith or devices linked to the shooting that suggesting language of limitations  no i think that language is insufficient your honor now now griffith well i understand that's what the d c circuit is suggesting should have been done in that case or could have been done in that case but was not so you're you're disagreeing that the d c circuit has set forth what it considers some limiting language well what the the circuit  more more broadly in connection with that limiting language that there might be circumstances where police would be unequal to identify the make or model of a cell phone  strangely this was a bit of a naive observation but the point hold they say that perhaps police are working with an informant and they don't know what number is involved in that case i think griffith was you're quoting is that whether or not compliance has been made with the particularity requirement depends on the information known to officers at the time they apply for the warran and here what's truly striking about this case is that the officers specifically knew of two phone numbers two different phone numbers that the informant contrary to the griffin hypothesis had in fact given the officers and the warrant application wholly neglected to include that fact it made no reference to the known bone you know why why should it what what would that add isn't that really a an because i not disclosing that in the warrant application the affiant obscure the question that it was for the magistrate judge to answer and namely that question was whether the the application submitted had it included the fact of these two phone numbers then the magistrate would otherwise have had before him or her only a single relevant or mirman which was the officers statement that based on his experience drug traffickers commonly use more than one going on for more than one and that's that page thirty one dollars of the appendix so if the application i have listed to cellphones the only other statement is drafters commonly used more than one what basis would a magistrate judge have to say you can see to it what you know and any you know any others that you they didn't put in the war and that meant that it were for the phones to be seized i would just had the st seize the phones and determine whether or not the phones were within the war in there for the warrant allowed for the  and kids have to migrate so boggles my mind because of those cell phones so that they knew that there may be more cell phones in there than the two they knew that because it was using and they could have easily limited the affidavit and the search warrant to cellphones burring the following two numbers those two cell phones and note the cell phones in that way the search would want would not across rice easier to anything they didn't there probabl believe the warrant would have had to be limited to those who thought of course the warrant also authorized a search for controlled substances so if for example there had been a phone now and in the coffee particularized and that's why occupants could have if they wished attempted to supply the officers with the phones specifically identified in the warrant and thereby they to hear it rang and they would not open it up it would just be that they demonstrated it was the phone if they weren't willing to do that i agree with your honor that it does seem that  might well they would have to buy at least intrusive means possible determine which phones matched the description warrant and that might require seizing more than two recall taylor naming even existed so without that it wasn't in any sense harmless at the very least as the conspiracy counts now as to the subset of counts i would like to call to the court's attention the fact that different harmless error standards apply with regard to the central issues so far as the th amendment issue goes the government's burdens of proof beyond a reasonable doubt that the outcome of the case would have been the same but for the error therefore your honor i believe the tipping point characterization means we win if the phones were the tipping point on this matter at least so far as the th amendment issue goes  surely the government has not shown beyond a reasonable doubt that the senate in any way the chap in the california standard that said i do think it is more substantial than simply accepting point and satisfies feel of a modified frank's argument that's based on kind of an any make th amendment claim because it's essentially substituting the concept of probable cause in francs for a particular you know your breath but it's otherwise the same the more important for point for me is that the interest is asserting is anemic because he's only challenging a seizure and not a search and that matters because cigarette versus united states the supreme court said in one thousand nine hundred and four that only possessory interests officers in this case tell the judge issued the warrant that they knew of to specifically lovers that were linked to taylor your honor instead the answer is it's the same reason they didn't seek an arrest warrant based on the control by they're trying to protect the identity useless in the further investigation and he or she is in danger and if you disclose the two phone numbers used that that person knew for the defendant then the defendant can just have his wife or somebody go on to his cell phone records and see who call those two numbers that day then you can almost be certain who it is as it was the warrant was so explicit that it caused taylor and his wife to strongly suspect that it was scaled down correctly but they weren't sure so that's why that's so it's part is you know what specifically permits a warrant like this i mean i think it construe this requirement with some measure of flexibility in this case basically you assess that the type of it and the circumstances or the type of crime and here the issue is that the ownership or and connection to a phone can be impossible to ascertain on site and so sometimes as even griffith recognizes you do have to seize an item to determine whether you need to search it  into him we still don't search right away because he withdraws his consent to search and that creates some confusion as to where we are now so we just took a belt and suspenders approach and went and got that nd war t so that's where that is and there are many cases in this circuit all in pos but there's one i cited in my brief that's kara's where judge restraint had this interesting long discussion of how it's it's complicated with cell phones and come back computers i think and that's you know it's because you just can't tell by looking but andresen covers that because you sometimes might have to grab a bunch of  how was this case the same or equivalent to or different from christmas well in your honor thanks i tried to distinguish that in my brief for me the main issue is you know when i read it i didn't have a problem with the holding because the officers in that case don't have p c to suspect that this evidence exists anymore at all it was like eleven months after this murder where they thought a cell phone might have had some record of it and of that is is what makes this distinguishable yes if we had no p c to suspect he even had cell phones if the officer could only say you know i know that defendants have cell phones you know that they often use them if it's all you could say was that and we had like zero basis for thinking this guy did in fact we had a basis for knowing some of his coconspirators actually didn't happen then that would be a different story  my reason of course for referencing griffith or more to the point the specific portion of griffith that i referenced was to demonstrate that the griffith majority had suggested a way by which the breadth of the search the breadth of the search for cellphones could be limited and they made a specific recommendation would you agree i agree with that and read any of the recommendations and that further i would suggest that there's some similarity in their recommendation of what could have been done to limit the reach to the language used in the war and here they said linked to devices linked to the shooting and here the war path the station talked about utilized in further whether the attack from the defense was on the warrant and not on the execution of the warrant it seemed to me it was on the warrant and that the suggestion from the c circuit of what would pass muster is similar to the language that did appear in this war yes similar in that language you know by the way is has been is the limiting principle that language of that nature connecting something you know a search warrant or search to a violation of a kind of crime even is been deems deficient since and recent even so i understand the d c circuit saying this is one way you could limit it i don't think it's the only way that's maybe even more limiting than it has to be and i think the same paragraph your honor discussing goes on to say yes you know it may be difficult to tell just by looking at something that it's the thing you want to search so sometimes you have to see fit and well and really any case with self and that was not the import of my question to suggest that it was the only one way but again i have understood from the outset the position of the defense here to be that this warrant authorized a whole well sale search for any cell phones found anywhere within the residence or within the place searched and my rejoinder to that is that's not what it says in fact it limits the cell phones to be searched or seized two cell phones that the officers would know to be utilized in the further end sub or have some reason to believe we utilized in the further and so and i would just modify that last part instead of that officers have you know no to be remember we're still a reasonable probability when they're in that house is there reasonable probability that these phones are being used by him that's why i that's why i modified my own language and continued with have reason to believe yes yes so yes and i agree with that and ask let me ask you then something that may not all that may be material to the inquiry here and that is because the attack has been on the warrant and not on the execution of the  warrant but doesn't it strike you as being really questionable investigatory and police methods to have seized two telephones and then afterward or in the course of it of that search and seizure not have taken the steps necessary to know in the wake of the search where in the heck the phones actually had been located when one was in the bedroom under a pillow but we don't know which one and one was on the table near some drug paraphernalia shows it's a photo taken mr taylor sitting there while the police are searching that morning and right there on the table in front of them is the white i phone so from that you can infer that the pink iphone must have been underneath the no you're i mean the police certainly didn't have that any reason to believe that ex ante and then even after the fact no other than the wife coming in and trying to testify that they were both her phones and used them and all that but no in th phone it's a little misleading because one of the officers testified is kind of a rose colored case but that to me shouldn't be dispositive because the same thing it like you feel where if you get on the computer of someone who suspect has child pornography if they're misleading labels for the files that doesn't mean there isn't child pornography there you may have to still look and a similar way a misleading color i mean if you're relying on officers to sort of gender stereotype in coming and getting the difference i think there your honor is it's for the office i mean i think i think this court has upheld searches and entire fire station and comp and seizures of all the computers there when they when the court knew child pornography  suspect your partner of dealing drugs they get a search warrant and they come into the are they going to separate office they see opposing the desk and they grab you're like you're yeah i probably would object and make a motion for return of property which didn't happen but yeah i would be object to the seizure and then i would hope the officers did then what they did here which is show restraint and don't go searching anything because that's why i think the cigarette case says the you know the they look it's less intrusive to see than the search because if i see something of yours i deprive you of the possessory interest but i can restore that you completely just by giving it back but once i've searched it i deprive you of privacy interest i can never so i think this is the nature of the just to clarify that just a tad or take it out just to sort out one further the partnership is a husband and wife small up for they suspect the husband of drugs they get a search warrant for the office the wife's phone is on her desk they grab it this should they have done  i think under the terms of this warrant perhaps they should do that yes lisa sees it because otherwise i mean what happens is and does happen is that defendants can if they get some hint that police are coming they just like hand their cell phone to somebody else  you know i think if they find it and they have it there's a fair probability that some evidence of his drug trafficking would be on that phone then yes maybe and a husband or wife i mean although taylor's wife said she had  no idea about this i think there's a fair probability if you're drug trafficking from your home phone or your office in your scenario and you work there with your wife she's going to jail so i think yes as a seizure uncorroborated and that just isn't so we had three detectives testify that he confessed on one side and on the other side there was absolutely nothing because the only people who could say otherwise were him his attorney they did testify and it was corroborated by the drugs seized by the testimony of a scale bone by the testimony of mick frazier so i mean it's not as though that thing was you know some big matzah ball hanging out there and nobody nobody knows whether it's real or not forthrightly stated that the wife's phone should be seen and as i understand his logic it had something to do with the fact that the wife would have known her husband was the owning drugs this goes to show either i think the reason it's natural for this court to hear something like that is because the th amendment mom cellphones has candidly become extraordinary warrants cannot simply confer a blanket authorization and i would urge the court to read griffiths in tandem with use of a radical principle here is that it matters what information is known to officers at the time they present their warrant application griffith didn't contemplate a situation where officers actually could identify two phones specifically and when they do have that information they had can determine what adequate particularly requires when that fear to get parity requirement is enforced as i said in and allows innocent occupants such as a partner of a suspect  that seizure was unlawful with no future searches the contents if not the holding a rule stated expressly engraftment even if griffith didn't say that i would encourage or honors the bink about the extraordinary importance of the simple possessory interest in a phone i don't think any of us would want to go without our cell phones for a single day perhaps not for a big difference like tip shed thank both of kelso we will d take this matter under advisement