the government lost that evidence in fact by the time they got a search warrant months later every single text message that was on this your stanford's phone prior to september twentieth had been deleted on mass blanket deleted the government then used those deletions against mr stanford a trial saying that he had been the one to delete them and that that proved his guilt the government's failure to preserve the phone evidence and they're that loss on mr stanford at trial require just missile or at the very least suppression of all of the phone related evidence under the fourth amendment the fifth amendment and the rules of evidence the government here improperly searched and we do we review that issue for plain error at this point you know your honor he reviewed this issue do novo mr stanford repeatedly brought to the issue of the failure to preserve the phone evidence to the court and attention repeatedly with the ground as i understand the record is that the full evidence should be excluded because he wasn't able to obtain an expert that was one of the grounds but he also stated at several points that to the failure to preserve the phone evidence more generally should refer should result in dismissal and because he brought that issue to the court's attention and stated the grounds for the objection under rule fifty one the issue was preserved and that here for a couple of reasons first of all the purpose the particular purpose of the border search exception is to keep out unwanted contraband unwanted persons and effects from entering the country but here mr stanford had already been arrested the contraband had already been seized from his car and the smartphone is being held in government custody as evidence of that a legit importation offense that makes this case quite unlike ca in that case a defendant was apprehended at the port of entry with laptops that agent suspected contained contraband files that was child pornography the defendant wasn't arrested he was let go but they retained the laptops in order to prevent that contraband from entering the country that's simply not what happened here because the phone was being held in evidence and because it was searched in an investigative manner riley and not cardamon is a controlling precedent and really required the government to get a warrant here which they didn't do the government's on reasonable search and seizure also resulted in the destruction of evidence the government has conceded that here and for that reason as well because the search was destruct states that someone made someone went through mr stanford's contacts on his smartphone and made a call to one of those contacts the day after mr stanford arrested was arrested while the phone was being held in evidence the government also has conceded that there were several attempts to access the internet using the apps on the phone the day after  it's it's unclear but at that time the phone was being held in government custody so i believe that the government in their response brief has suggested that it could have been someone other than a government agent who did  it could have been remotely access and that goes to why the phone was also unreasonably seized here the government the phone was being held in government custody that's undisputed so the government had the responsibility to maintain the phone  secure manner we cited federal protocols in our briefing but also if you look at the warrant application in this particular case which is that supplemental excerpts of record sixty one and sixty two even the warrant affidavit here says that the phone should have been secured in a signal free manner if the phone if someone or something was making calls from the phone or was searching the internet on the phone was deleting web history from the government can see it could have done a better job but  with the deleted evidence at trial repeatedly over and over in their initial and rebuttal closing arguments the government focused on the fact that there were hundreds of text messages deleted that mr stanford must have been the want to delete them and then that that prove that he knew that there were drugs in his car the knowledge was the only disputed element in this case what's the inference to be drawn from deleted messages if they don't have any information on what those messages said i mean this is that seems to have minimal evidence free value in terms of the argument so how did that hurt his case in light at the fact that drugs were found i guess two points first of all mr stanford and car parts into the country and so that was the content of the text messages that he pointed the agents to and the contents of those were usually just government was trying to steamroll him with the deletions but nobody knows what the deleted mess just say so it doesn't have a whole lot of evidence for a value well that's the second point and i would beg to disagree there because it was it was the fact of the deletions themselves irrespective of the contents of the messages that the government used to steamroll mr stanford saying it consciousness of guilt type of inference right exactly and the government really pressed that to the jury over and over there was extensive testimony from the case agent about the fact that all these messages had been deleted and that i would point out again just to be clear the deleted messages that the prosecutors refer to in their closing arguments were hundreds of messages all dating prior to september twentieth that was the day before but the agents also testified that there wasn't a single message on the phone prior to that date so this supports the inference that those messages were blanket deleted and  possibly as a result of the fact that the government had preserved the phone in this improper man that permitted it to receive a signal please the court daniel zip on behalf of the united states your honor two and a half months after the defendant was arrested in this case the agents conducted a search of his cell phone pursuant to a valid federal search warrant it's undisputed that nothing that was obtained from the defendant's phone at the time he crossed the border was used to support that search warrant two and a half months later so under the independent source doctrine suppression of the evidence obtained from that search warrant would not have been an appropriate remedy regardless of what may or may not have happened the morning after his arrest can you address counsel's point about the government's closing argument attempting to basically use the fact of deletion and i don't know if it's remote access or the phone i can't quite tell even what happened because the phone was in the government's custody and apparently a phone call was made internet searches were made so it's unclear what happened but council sway is that in closing this fight the fact that the government controlled the evidence it was used against at the defendant and there was a suggestion that the jury should draw an adverse inference of guilt based on that tippity yes your honor i think the confusion arises from the fact that this idea that there were text messages deleted from the phone is new on appeal below no parties were arguing that there was an auto delete function or that there may have been text message deleted the only question was whether the agents had access to facebook possibly change their privacy settings so this idea of deleted text messages is is new and was not addressed below but going to the closing argument what we argued was not that the deletion of text messages generally should be held against this defendant it was a very specific argument tied to the types of text messages or the timing of the tech messages that were deleted specifically in this case what we did was we took the toll records showing who the defendant was texting with and when and compare those against the text that were on his phone at the time across the border and what those showed was that with his girlfriend he was texting hundreds of times in the days leading up to the crossing but that a single text message had been deleted while he was in line coming into the port of entry that text message she responded to and said they do that to everyone that's crossing suggesting that he probably said something to the fact of my god i'm being secondary and they're checking under the hood he deleted that message and that message alone so that the argument that there was some universe of older text messages that may have been automatically deleted would have no relevance on that question of whether he specifically deleted only a single message from himself likewise as far as the hundreds of deleted emails that argument was tied directly to the lesion of the e mails from that he exchanged with this person he knew as jo and those showed that even when his phone contained hundreds of e mails with his girlfriend during the two days leading up to the arrest all of the text messages that he had sent to joe according to the toll records had been deleted in  fact up until the few minutes before he crossed the border he was still texting with joe all of that had been deleted so our argument was it was closely tied to those two inferences that he while he's waiting in line to cross into the border he gets pulled in secondary and he deletes a message to his girlfriend and all of the messages from joe had also been deleted i want to get to a judge drawing her to question about rightly but before that i want i want to clarify the underlying facts first morning after the defender was arrested after the agents and already left and gone back to their office there was a thirty second call to lil sis placed placed on the phone and that phone then tried to access a facebook page with the search two and a half months later we don't think the question of whether riley applies or whether this was or one that a border search has any relevance at all to this case or at that time he's trying to think that the way you you know give the progression  that's not the only evidence i was introduced at the trial right yes we don't really know what happened right morning after by the fact is that the government says that a search other than the search pursuant to the warrant the government's position is that no other search occurred but the defendant's position is that a search must have occurred because the phone was in government custody at the time that a phone call was being made using the phone and then there were  to access the internet from the phone am i getting the facts right that's correct your honor so was the warrant in any way tainted by let's let's assume that a search was searches were made prior to the warrant because somebody the phone to access something yes was this when the agent said it might have been a but dial situation correct so so if we assume that a search was made was the war tainted by anything that the have attained you know you are not a simple answer to that is the agents didn't even know about this but i'll search until after they got back the results from the search warrant the agent himself didn't conduct that search no one even knew that this had happened until after they had gotten a valid search for a magistrate and conducted a search of the phone pursuant to that so it had absolutely no effect on any of the search or the evidence that was introduced at trial well then that's not a concern in this case of note because there was not that that kind of a search without a warrant at the at the border or anywhere else yes that's correct or as to the evidence destruction again the only defense counsels indicate that we conceded that things were destroyed on the phone i think the only concession was that there was a when the web when the phone tried unsuccessfully to access the internet at that exact same millisecond there was a deletion of that web history access that's the only evidence anywhere that anything was deleted from the phone this idea that that there was a universe of t messages that were deleted was simply no evidence and not even discussed below and furthermore even if there had been some other delete function there's no indication that the agents were aware of that function and there's certainly no indication that what they did in this case rose to the level of bad faith at most and we can see that they should have done a better job of accessing this phone only when a farraday boxer can receive an outside signal but at most that was negligence which on september twenty second when the when a call an outgoing call was made from the phone to a contact on the phone and when the web when the internet was accessed from the phone and information deleted that occurred on september twenty second t it applies when a particular category of evidence acquired by an untainted search is identical to the evidence on lawfully acquired it wasn't here we know that things were deleted off the crime during those improper searches so under murray as well as under nics which states that when the challenged evidence is tainted by the initial illegality the independent source doctrine simply has no place i would like to also address this second point with regard to even if this court disagrees that there was a search the evidence still should have been suppressed if not the charges dismissed under the fifth amendment for all the reasons we stated in our brief there was bad faith here mr stanford told the agents there is a scope atory evidence on this exculpatory value of the phone was evident to agents as a result of that the prosecutor's repeatedly misled the district court about whether the phone had been mishandled while it was in government custody and there was no comparable evidence for other reasons i explained earlier as far as explaining when the messages were deleted and by whom so for those reasons looking at sarah goes home or the charges should have been dismissed at the very least district court's ruling but even if this court doesn't find bad faith and the government is has said that it was negligent in failing to preserve the evidence now under then judge kennedy's opinion and loud