the honorable united states court of appeals for the st circuit is now in session all persons having any business before this honorable court may give their attendance and they shall be her god save the united states of america and this honorable court court is seizure of his computer was voluntary as noted in our opening brief the burden of proving voluntariness is on the government moreover we submit that the decision of the district court was clearly erroneous based on the facts the fact there are three factors that the core is to consider when looking at a concert issue and that is whether the individual had knowledge of his right to refuse consent any possible banville subjective state of the consenting party and whether there are inherently some inherently course of tactics other seven than in the nature of the questioning or and the nature or the environment in which the questioning took place here i was the mr money knew he had the right to refuse consent because he did so early on and pretty much throughout the conversation with the officers but w mr money sat i want to call an attorney i want to go can i go into the house to make a call the officer refused to allow him to go into the house to call an attorney immediately there after i would say less than a minute bet was when mr money consented to the seizure the officers a company and him into the into the house and they seize his computer submit that this that they only are not allowing not allowing mr mommy to use the phone to call his attorney was was what led to him consenting to the seizure and  this was not a bollen terry consent the district court found there was it was not who are said to not let mr money in to make the call because he could have used a cell phone but there's absolutely nothing in the record to indicate that anyone the opportunity to talk with his attorney to show that in this case it was not necessary for mr money to be kept out of his home to use the cell in a few question yes the one way to read the record you tell  me this is a permissible way to read it is that they are worried about him going in alone to the house because he might destroy the evidence correct and so clear to him that they could go in and just take the electronic but if they don't want them to do that then they need to work out something which will involve either him not going in the house on his own and waiting for him going in himself and handing it over to them when there was a rd option for them to accompany him into the house so he could use the phone to call in the tourney  excuse me but go ahead judge karen and i have a question if i see that that's a possibility but i'm just saying if if if one of the options that they were saying to him is all of this is conditional we could just go in and take computer the electronics then i don't really know what the problem is muster saying that was not offered as an option it was offered to him as an option i consented to it yes if he consented to the seizure they want to take it other there was a statement says we could seize your house or the electronic that's all i thought said without saying i need a warrant to do that because are probably caused to go in because of the risk that maybe just they could have they could have kept the house they could have kept mr money and his family or anyone else from going into the house while he got a war just for him to seize the computer that was an option but i don't believe they could have gone in to just seize the seize the computer because clearly it's my reading of the record my reading of the by the the officer is that when they st went to mr money's home they did not have probable cause to get a warrant to seize the computer if you look at the search warrant you meant that there is nothing in there no incriminating statements regarding mr money other than he said thirty dollars to someone else one point in time and they didn't stay this you did raise the lack of probable cause argument and the district court the district judge ruled against you and found that the officers had probable cause as of at least as of the time of the conversation with him that you are relying on you have not appealed that determination so we take it as a fact that they had probable cause or they reasonably believed they had probable cause at that point when they said you know well the option for us is we go get a warrant and given they had probable cause there's a lot of  instance in this case that without even looking at the war putting that aside because that was not i don't believe i don't believe that was raised a low there was no probable cause i believe the  involuntary as if there's nothing wrong with the officers saying look the alternative to your consent is just free when he was reached fuse that did he say ok just go ahead and take it he wasn't refused the opportunity to get a lawyer he just wasn't offered a telephone i mean he could have asked for one i mean are you saying that are you saying that when somebody says i want to i want to make a call that it's incumbent on the police officers to make all those options for making that happen clear to him i believe it is yes i do think the district court judge said well he could've used a cell phone you know i don't know if anyone had a cell phone no one knows that that was an option and the burden is not on mr mommy to establish the facts the burden was on the government the government didn't produce any evidence option for him to make an arrangement to make a call other than going to the house given they had a very reasonable reason to be worried about him going to the house to do a wife and again i go back to my original point that they could accompany him into the house there's nothing stopping them from going into the house with him so he could make his call oh yes there was at their way they thought that the wise course was to go get a warrant  and how how can that under those circumstances render your client's consent and voluntary ok you seem to be assuming that the police have to should have been presented an option presented to mr money and also the other point i want to bring out not just the fact that he wasn't given the phone to call but the fact that he his father he is obviously is very restricted he was not allowed to go over towards tucker and bryant and i think that this added to the court corrosive nature of the environment during the questioning ok so you're making two points  one is about the father not being there at ten helped his adult son make a voluntary decision and the other is the cops should have given him a cell phone when he when they said no we're not going to let you go into the house right now right i think and i think the fact just because mr mommy was i think at the time forty six years old does not mean that he did not feel overwhelmed and afraid in fact when the officers testified that he was device please attorney davis and attorney block if you could unmeet your device could you get reith at clay's absolutely your question touched on an argument that i wish to make which is that mr money's argument is based on a flawed assumption that law enforcement had some obligation to assist mr mommy in making a phone call at the time that they secured his home they did not there was no th amendment right to counsel at that point in the investigation was from he had not been charged with any crime there was no th amendment right to counsel mr mom he was not in custody and he was not even being interrogated at the time of the consent and even if this was the situation in which there was questioning and indication of counsel in the interrogation setting only requires the police to seize questioning it doesn't require them to cease all of their investigative steps so the issue here is whether the police had an affirmative obligation to assist mr money in reaching counsel and and there's simply no basis for that in the law instead they present it at what i understand one thing that i needed i think apprised of what the case law is in this area so assume let's take it as a given that they had probable cause at the time of the conversation to seize the computer yes that's how you think we should be taking as a baseline correct correct yes now as i understand it the opposite is one of the impression that they still needed a warrant to search the computer independent of the right to seize it or is that wrong or right they needed a warrant both to search the computer and they needed a warrant at that point to enter the whom in order to seize the computers because mr money to that point had declined to consent to the seizure of his so you're in new even though they had probable cause and you know they were worried about it possible destruction they did not have at the way at that point to go in to get the shooters without it oh the only authority at that point was to prevent the destruction of the evidence and that's why they had the lawful right to secure the home and if you look at the conversation on the page fifty nine of the joint appendix between the officers and mr mommy they say they begin by saying we can either we can seize your house and he's concerned about that and then they clarified and we can secure your house while we go get a warrant and i think that was a correct understanding of the law on the police officers parts that they couldn't enter the home without his consent but they could they could secure them to prevent anyone from entering it in order to preserve the evidence and that comes from the supreme court decision in illinois versus macarthur that macarthur also makes clear that the broader rate of law enforcement in this situation is to completely secure the home and the fact that in macarthur the officers accompanied the defendant in to make a phone call the supreme court refers to that as a as a lesser that is the lesser being within the greater of the greater rate was to secure the entire home so law enforcement here is obligated to use least restrictive means to preserve the evidence they felt that the appropriate thing was to secure the home in the absence of consent to seize the evidence and so the only relevance of this question of mr mommy's request to make a phone call which i would note he didn't even specifically say i wish to call a lawyer he just said can i go into the house to make a call  it generally is he's or here's the here's the puzzle if they had seized him and then asked for his consent would question whether the consent was voluntary correct correct i custody or restricted yes now we see your house and say you can't go and it and yet resplendent think that not with thing that's happened to him is contempt is voluntary what's your best case for saying that after they've told you're going to be kept out of your house your decision to give up an item in the house and as a price of entry into it is a consensual act well i think it's thank you i would point the court to of those cases where was the person who's consenting being told that one of the option was you going to be kept out of your house for maybe a night lawful to seize a person and yet when you supposedly consent when seized we don't treat it as a voluntary consent i guess i'm asking what is the logic of saying when we say we're going to seize your house unless you consent to give us something in it that's also concept i think i think law enforcement has the great to preserve evidence and effect comes at some inconvenience to the defendant then the defendant is allowed to choose between his own inconvenience and law enforcement great to want to preserve evidence for an investigation and so here mr money made a valid choice between two dollars lawful options and he chose the one that was less inconvenient to him with the full understanding that that these cases regrettable a mission but that's what my research showed your honor we did say to the miller decision but we did not say to that is really and i do apologize for that other words at some point the question is is any choice that you put them to that's lawful non coercive maybe the answer is yes or are there some choices that you put into that constitute that i think that clearly in this case the the choice was not courses and so that rather than speculate as to whether there are certain circumstances in which it might be a course of but lawful choice i would say here you have a forty six year old man who has who fully understands his right to refuse consent  and has had a nonhostile conversation with law enforcement and law enforcement has been very upfront with him about their options at that point which all include going to a judge air counsel didn't they in fact get a warrant so they could search the computer once they got it yes they did at how long did that take was and that down that same afternoon  i am not sure but the officer did state mr money that his choice was either to go see judged that day for a warrant for the house or the next day for thank you both that concludes the argument in this case attorney gave us an attorney block you should just connect the hearing at this time