when you really good morning your honors may please the court deputy federal public defender alexandra gates on behalf of paolo lara and your honor this case is about the constitutionality of a weren't lisa specialist probation search of cell phone data i'd like to start by emphasizing that a ruling for the government in this case would vastly expand what is supposed to be a very narrow exception to the general warrant requirement specifically the supreme court has never found suspicion with probation search constitutional in any context now this court an outlier among federal circuits on this point has done so but only once and that's in the king case this case is far different from king king which upheld a suspicion last probation point in that case we have king to deal with and under the majority i would take it as a clear and unambiguous message was actually clearer and with regard to the question of whether needed suspicion or not that's true your honor i agree  but here we do have a nonviolent for patient our instead of traditional property we have highly private personal cell phone data and we have no explicitly authorizing probation condition at most it circumstances even conceding some important government interests and of course some reduction of mr lara's reasonable expectation of privacy to account for his status as a probationer under the telly of the circumstances the warrantless suspicion less search of his cell phone data was unconstitutional second your honor i think it's important to know that the riley case was not just unanimous but it was also emphatic in its discussion not only of the incredibly strong privacy interest a person has in his personal cell phone data which the rightly court suggested are greater than the interest it is a make a difference that riley arose in the context of a search incident to a wrist it makes a difference in the fact that it's not one hundred percent completely controlling in this case but i find it hard to see how in light of reilly one could say is the government does in this case that mr lara's purpose privacy interests were small or minimal or if the district court said in this case of course the district court did not have the benefit of riley which this court now has before it is there a good face exception to a want a search there is a good faith exception the only one that the government has argued is the davis good faith exception which of course we know from both the majority and concurring opinions in that case requires binding appellate precedent the absence of controlling authority is not sufficient that's not binding appellate precedent binding precedent must pacifically authorize the officers is available here no i believe that any others would have been waived and aren't appropriately before the court because of the way they argued us both in district court and here their yes your honor absolutely there in the end of course the only supposedly binding appe precedent that the government has relied on is the d s case aside from the fact that's a state case and it's not clear whether that would qualify as binding precedent let's assume diaz case out of the california supreme court but the consent  officers did here that's simply not how binding appellate precedent works it's not supposed to be an analogy moreover actually in cuts in the other direction well i would certainly agree that now it does in terms of what the officers would have known at the time pre riley but also in terms of the merits in the apply here because of that unusual privacy interests absolutely the second important point of writing reilly's not just the important privacy interests which i think are at their apex when we have cell phone searches but also that cell phone data is not the same as traditional property and it is it is a beast that's quite different and needs to be analyzed differently and to some degree in contrast to an existing private principle  to which the government doesn't even begin to suggest that there's some sort of binding appellate precedent that would have authorized that at the time king who had not yet been decided there was no binding appellate precedent that would have authorized a suspicion that probation search whether of traditional property or cell phone data then the king two cases is really the only one that exists in this circuit on that point can resulted in a search of the residen yes this is a search of cell phone data so is that your point here that the cell phone data search that that is more significant more intrusive than the search of the home in king yes your honor and that that's not simply my point but that's explained to us that a cell phone search is going to be more more intrusive than a typical house search and we know that to be the case i think an average person we keep on his or her may keep on his or her cell phone all sorts of information that traditional  home search would not authorize the officers to to go looking into might get access to medical records that you know would be kept offsite bank records that would be kept offsite you're centrally reviewing communications which is like having an off on authorized wire tap so but also the case that the resident search was specifically mentioned in the condition absolutely your honor that's and that goes to to to the other part of the of the balance on terms  electrician of privacy it's not just that the interests here are so great and we know that under riley but also we don't have a clear and unambiguous condition authorizing this riley makes it very clear that cell phone data is not a traditional property  and so both sides of that equation are really quite different from from the and i would like to reserve the balance of my time unless there's a question that you're from the government and then you'll have a chance thank you very much morning your honour's may please the court ryan weinstein in behalf of the united states this appeal raises two issues the first is whether or not the fourth amendment permitted a probation officer to search a cell phone pursuant to a abroad suspicion  search condition that authorized the probation officers to conduct suspicion the searches of the patients property the second issue is whether if that search was unreasonable for the good faith exception should apply now the search was reasonable for at least two reasons the first is that it was reasonable under this court's and the supreme court's general fourth member balancing test the second reason it was reasonable is because the defendant consenting to it by agreeing to the broad suspicio suspicion the search condition at the same time i can complete is a the word property was understood two hundred to include searches a cell phone and that's i mean if you'd asked ten years ago search of property i doubt that anyone would have understood that that meant cell phone but first the search condition itself placed no restriction on the types of propert broad term property which conceivably could include not only do you look through physical property but once you get your hands on a cellphone you can push all the buttons and do everything to find out all the stuff the stroller their electronic way i understand that the term property could be read hundred to include that but is it clear that it includes that not only could it be construed to include all property but for decades at the time the search condition was imposed the california supreme court accepted the waiver notion as as the the the answer i mean it's a factor but it's not determine a chance and i'm guessing that the large reason for that is because there are some things fairly coercive about this consent i e don't have a lot of choice i don't know why but whatever the reason is it's never been the basis for any of this line of cases you're absolutely right your honor the supreme court has yet to specifically the dress the issue of whether consent to a suspicion is concerned search condition counsel been asked several times and it's just keeps going away from there correct and the reason why the supreme court has addressed it is because it hasn't needed to because in each case it's down the search was called the fourth amendment and waiver in the plead documents did in fact constitute a waiver of the fourth amendment privacy rights it did at a minimum reduce what what legitimately object but generally legitimate privacy interests this probation or could  says person or property comment including any resident premises container or vehicle now i understand says including but that there was some found need to spell out certain things and i i assume you would agree that this is not a residential premises a container or a vehicle yes ok so hundred get under today's precedence yes at the time of this search this court it had there was no difference between cell phones and other close containers  no one is arguing they can seize the cell phone right i don't hear that argument either right so and in so far as it resembles other property i e it's a thing you can take it even sees the question is whether you can really the that and everybody agrees you get a warrant if you get a warrant you can do that right so that that's where the analogy starts to fall apart as as to avoid being a quote container they certainly were this court had twice the firm that closed containers and cell phones were no different from one another for a fourth and then a purposes so the point though that i think the government and i are trying to make here is that the execution of the fourth amendment waiver of the agreement to this broad search condition that included property as an illustration of the various objects that were selves to search constituted sealion circumstances in the totality of circumstances analysis which this court  uses to evaluate the degree of intrusion into whatever legitimate privacy advocate haitians the probationer retained the probationer of course owing to his status as a probationer starts with a lower expectation of privacy that lower expectation of privacy is under this court's holding in king significantly diminished by the salient circumstance of the broad suspicion this probation term that term as your honor pointed out was even broader than the condition in king which this court nonetheless found significantly diminish that probationers reasonable expectations of privacy and to remove any doubt about what that scope of the probation condition was the defendant concurrently executed what was called in the advisement of rights document a fourth amendment waiver in which he agreed on advice of counsel explicitly to waive whatever protections he had against unreasonable searches and reasonably expect in terms of privacy of all his offer to be a digital or nonda jingle and that's of course saying nothing of the defense use of a fake name to subscribe to the cell phone issue which this took this the district court in this california would have known under all the circumstances that the search was illegal that is the test given the state of the law at the time of the search the probation officers here had no reason to believe that their search was legal when i stress the knee existing precedent question i'm sorry already why does today the same temp focus and not your sort of two ways of looking at it whether he would affirmatively known or whether we illustration of good faith which might be manifested in the existence of binding appellate precedent on the very issue but to say simply because there is no binding federal appellate pilot present specifically authorizing the search the then the officers necessarily lack good faith is to turn the test on its head and it's actually counter to the purpose of the exclusionary rule the sole purpose recognize the routes to in court case law and the issue which is deterring police misconduct  that results in a fourth member violation and there are a few reasons why the officers in this case we have no reason to believe that their search under the circumstances legal first as i mentioned decades of california supreme court precedent i see my time is almost concluded california state of california probation officers and talking of serving under california law in fact the state of the law in fact the state of the law was so well settled your honor that it was a matter of protocol for the state of california probation office to search the cell phones of probation or especially those subjects especially those probationers have been convicted of drug trafficking chopping offenses and that's something that for one page twenty six and the excerpts of record in the probation officers declaration and so for those reasons given the state of california law given people versus diaz which had specifically rejected the notion that cell phones were any different from other closed containers the fact that reilly had been decided for years after the search and the fact that federal precedent was in accord the forty six and so the fourth gate and seven circuits had all held like people versus the as for similar reasons that searches of cellphones incident to arrest were valid in the for them and for all of those reasons the officers cannot be said to have lacked good faith there was not a whiff of deliberate negligence recklessness or any of the other criteria  the supreme court typically looks for to see if the application of the exclusionary rule would have to turn a fact that needs to have before the rule applies for all those reasons your honor even if the search here was unreasonable on the fourth amendment a good faith exception to the exclusionary rule should apply thank you thank you the extent davis include some language about good faith that the government's trying to analogize to those those other cases or where something else outside of the officer has gone wrong there's a database error or a magistrate has improperly issue warrant something like that here we're not talking about something extra notes the officers were talking about the officers themselves making their own judgment in a vacuum of what they might be allowed to do and i think justice sotomayor concurrence in davis is is very persuasive on on why that is not what binding appellate precedent is all about i would also emphasize again there was no binding appellate precedent allowing searches without any suspicion whatsoever at the time  very clearly decided that when a an individual gives up certain rights in exchange for a release of liberty that those conditions that are posted on you to to meet the reasonableness test don't need to be constitutional let me ask you this is that related to what you just said let's rewrite the probationary submission the search provision so that it says search of property including cellphones so that cell phone what i might be interested in so let's have that be absolutely on a big us yes what's the answer to have what happens then it's going to be a case by case answer your honor and i don't think it's at all clear that in every case or even in most cases that the answer is going to be that the search is constitutional first will be a question about whether the condition imposed is is lawful but assuming it was lawfully imposed and appropriate to the case given what the riley court said not only about the incredibly important privacy interests in cell phone data but also the riley court make this more general statement that although the information on a cell phone isn't immune from search a warrant is generally required and when it says that it seems to be talking beyond the search incident to arrest cont t i think that even though you would have a clear and unambiguous condition which is part of the recent all expectation of privacy analysis you still would have such a increased or an important expectation of privacy in this highly personal day lida that depending on the government's the government's interest side of the balance in that particular case certainly there might be some times when that was unconstitutional perhaps there are some times when it would but unconstitutional because the state does not have a reasonable expectation my reasonable expectation is to ration or is well there's the language it's crystal clear that's what i expect no it may be that the state does not have the power to oblige me to enter into that contract as a condition for my getting parole yes your honor and i think the scott decision is quite clear that in fact it doesn't have that that carte blanche power that we need to assess the constitutionality which would then come down to the totality of circumstances analysis that as i as i was i think that this must snuck off question has been decided by this court and scott to the extent that this court thinks that that is an open question that needs to be addressed i don't think that this court given an open question is a matter of supreme court long it is an open question as a matter of supreme court law  although i agree with your honor that the supreme court is strongly suggested that is not the approach to take and use cases but i would say that the court doesn't even need to decide that that more abstract waiver consent question because the language of the purported waiver here is is so narrowed by the following language that specifically does not include cellphones that even to the extent he could consent in exchange for the grant of probation even to the extent that was lawful he immediately knowingly consent he may or may not have done that happy to see them over my time in thirty seconds yes your honor three main problems the false name first of all the evidence was not admissible in fact it was not even admitted in court are here there are problems with it under the federal rules of evidence and even to the extent those don't apply under due process at least someone needed to admit it provide a foundation attempt to authenticate it provide some reason to believe it's reliability to the extent it was properly admitted in considered it does not show how the name peter ended up on this document in fact the document itself suggests that perhaps somebody else transferred the phone into mr lara's name and finally even if it shows what the government suggests that it might he intentionally provided the name peter as the court was already suggesting the use of the correct first initial plus correct last name plus his address combined then with him having exclusive use control in possession of this phone i think that objectively that shows a reasonable expectation of privacy in