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Out of the shoot today is United States versus Salas.

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It is stock at 23-8027.

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Ms.

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Smith, would you please hear your argument when you're ready?

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Thank you, Your Honor.

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Let me just ask, can you hear me okay?

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Yes.

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All right, thank you.

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Good morning.

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So far, I should say.

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Pardon me?

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So far, I can.

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Okay, that's a good start.

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I feel like that this case is a law school examination case.

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It causes the court to need to reconcile and evaluate several bodies of law as it relates to search and seizure under the Fourth Amendment.

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It requires the court to look at the particularity requirement of the Fourth Amendment, particularly as it is applied to warrants issued for cell phones.

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It asks the court to look at the scope

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of searches pursuant to those warrants, particularly when one warrant starts as a drug warrant, the second warrant morphs into a child pornography case.

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It asks us to look at the effects of Frank's error, pretty significant Frank's error, I believe, in this case, on the standard exclusion under Frank's and the

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the inability of Leon Goodfaith to salvage that search.

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It also asks us to then look at application of the inevitable discovery doctrine when we have in this chain of events Frank's error.

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And at least based on my research, I wasn't able to find a case anywhere in our district or our circuit that squarely has

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these types of facts involved in them and application of the law to those facts.

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We'll probably be talking about low error because that's where the district court high attacks and I expect the government will be talking about that too.

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I don't believe low error applies in the same way on these facts but we will be talking about that.

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I don't think that the government and the appellant have

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very much different to say about the events that happened, the actual factual events.

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I think we probably agree on those.

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Where we disagree is how the law applies to the evolution of those facts in this case.

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I know that you've read the briefs, but I do think it's important for purposes of discussion to go through a few of the salient facts just to make sure the timeline is right.

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And obviously, if the government disagrees with this timeline, they will alert you.

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On March 1st of 2021, and I think it's important to recognize that these facts occur in 2021 because of the conversation I want to have about Riley and Russia.

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Law enforcement in Casper, Wyoming issued or executed an affidavit to support a search warrant and asked the state court judge to issue that warrant.

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in that warrant, it was for drugs.

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And according to the very first statement that the defense attorney below mentioned in his motion to suppress, this is a typical drug evidence warrant and did not authorize computer searches.

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So that was certainly the perspective of defense counsel at the time.

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During the

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issuance of that warrant on March 1st, the law enforcement officer, Officer Myers, I'm just going to refer to him as Myers from here on out, did not seek nor did the district judge authorize any type of a search of a cell phone as a place to be searched or

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authorized the seizure of the data from that cell phone.

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It wasn't requested.

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It wasn't authorized.

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And in the briefs, we tried to extract for you so you could see what the face of those warrants looked like and what the affidavit looked like.

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That was on March 1st.

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You don't suggest they couldn't physically take the phone?

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No, I'm not suggesting that at all.

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And once they take the phone, even if they don't open it,

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They have the data.

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They have possession of the place to be searched.

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Yes.

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So they have the data.

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They have possession of it, but they don't have authorization to search it.

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And those are two different things.

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You know what they say about possession?

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How much of a law it is.

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With all due respect, Your Honor, I don't think so.

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Riley stands for the proposition that when you have a cell phone, you must have a search warrant.

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And Russian, handed down by this circuit, says that a search warrant

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for a cell phone in order to withstand the particularity requirement of the Fourth Amendment must have two things.

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The first thing is it must identify the place to be searched as the cell phone.

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The cell phone in and of itself isn't what's being searched.

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The data is what's being seized, not the phone.

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I think possession of the phone from a physical perspective, just like I'm possessing this pen right now, is different than the legal construct of seizing that and searching it in regard to the particular requirement of the Fourth Amendment.

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So I don't mean to split hairs, but I think it's more than splitting hairs because we have law that says that.

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Thank you, Your Honor.

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What the warrant says is records and or receipts that are electronically stored and it doesn't say cell phone and it doesn't say pay-o sheets and it's not as detailed as some of the other cases, certainly.

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It's more than a seizure, which is to say the very end of the first page more up for search and seizure speaks about inventory of property seized and concludes talking about the search.

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and make the search.

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Commanded to search the person, name for the property specified, surf this warrant and make the search.

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That sounds to me like everything that is properly seized is also authorized to be searched.

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Your Honor, I don't think it was... The thing to be properly seized was the data and that didn't happen until seven days later.

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It was seized when the forensics technician

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opened the phone.

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It was not lawfully seized under Riley in Russian until that point.

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Well, Riley was a search instance to arrest, right?

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Yes.

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That's not very helpful in our context.

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Here there's a warrant.

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Pardon me?

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I'm sorry?

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There's a warrant.

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Yes, and there is.

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And that's right.

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But I don't think that that alters the method in which the whatever authority there is

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for the search because under the Fourth Amendment, we have two ways to have a valid search.

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One is with a warrant found on probable cause meeting the particularity requirement.

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And the second one is pursuant to an exception to the warrant requirement.

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And if we meet both of those or one of those, then there's no issue about suppression.

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Is it your position then that there always has to be a second warrant when electronics are seized every single time?

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When cell phones are seized, that's a different thing.

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I don't think the law goes as far as to say every electronic.

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Okay, that's the rule you're proposing, though, is that any time a cell phone is seized, regardless of what the warrant says, you have to get a second warrant.

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I think that's what Russian says, Your Honor, and I think it says it very explicitly.

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But Russian doesn't have the same language in the search warrant, does it?

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It just talks about seizure.

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It doesn't talk about search.

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I don't think it matters because the rule of law is very simple in Russian.

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And that's what this court has to resolve is, is the rule of law what the words of Russians say it is, or is it something different?

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And we certainly believe that as it relates to due process, I didn't argue this in the brief, but as it relates to due process, we the people have the right to rely on the precedent set by our courts.

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And if Russian says that, then we have the right to rely on that.

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And Russian was handed down in 2017.

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These facts occurred in 2021.

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What particular part of Russian are you relying on?

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Just a moment, Your Honor.

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And if I'm sending you off on something and chewing your time up, I can look at it.

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No, that's OK.

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It would be helpful if you'd ask me the specific question.

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I'm sorry.

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You keep saying Russian, Russian.

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And I have Russian in my hand.

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I'm sorry.

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OK.

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I say Russians different and you say no it's not or else it encompasses what we're talking about.

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I'm looking at in Russian the situation was that there was there were multiple cell phones.

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Some were taken at the time of arrest and then held by law enforcement and then there was a subsequent warrant issued

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But the warrant identified the place in the content, not as a cell phone, but the location as the residence.

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And the search warrant did not identify the location of the two cell phones that law enforcement already had in their possession.

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And in that particular case, in section one,

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of the opinion, the court goes into the discussion about Riley.

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In the context of cell phones and cell phone data, the Supreme Court recently held in Riley that a warrant is generally required to search digital information on a cell phone, even when the phone is seized incident to arrest.

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But let me read a little further down a sentence.

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The problem, what I understand Russian's problem,

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The warrant itself merely authorizes a search of the residence and seizure of any cell phones found inside.

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In other words, the warrant's different than this one.

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It says you can seize cell phones, but it doesn't say anything about searching.

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This is my understanding, and correct me if I'm wrong.

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And then it goes on to say the warrant did not identify either of the phones that were already in law enforcement's custody, nor did it specify what material, for example, text messages, photos, or call logs,

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law enforcement was authorized to seize.

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And then it goes on to talk about Leon, and ultimately the evidence did come in under good faith.

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But that's not the part of the opinion I'm talking about.

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I'm talking about the rule of law.

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And if I can find it, Your Honor.

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It's in our brief and I apologize.

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We can review it as well.

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I didn't mean to run your clock.

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That's fine.

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Please proceed.

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My time is your time.

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So if it's something of interest to you, I certainly want to attempt it.

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But at the end of the day, the rule of law in Russian is exactly what we have put out in our brief.

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And what I've stated is if you're going to seize data from a cell phone, you must have a warrant that says to meet particularity.

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that the place to be searched is the cell phone and the data is what is being seized.

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And that's been established, going back to Riley.

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And Riley sets forth the reason that's the law.

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And it's because these little things we call cell phones are our whole lives now.

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And Riley was handed down 10 years ago.

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They talked about having 16 gigabyte of storage in Riley.

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I looked at my phone before I came in today.

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I have 128.

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So it has exploded since Riley was set down originally.

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That's why there's a different rule.

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And I'm not saying it's right, wrong, or otherwise.

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I'm saying that's the rule.

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It makes sense to me.

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But we can argue about maybe what it should be.

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Maybe this isn't perfect.

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But that is the rule of law that we have today.

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And that's the rule that should have been applied.

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And it never was.

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When we get to the Franks' error, and I don't want to minimize that, I think that changes this case.

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All other things being equal, if the error for probable cause had been for something other than law enforcement malfeasance in a pretty big way.

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The law enforcement officer, in my words, lied.

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Lied to the magistrate who was issuing the warrant.

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He didn't know.

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Lied to the ultimate forensic specialist who actually opened the phone and found the images.

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That's why the district judge tossed all of that evidence in the first instance.

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I can't find the case.

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And it may be out there and I just didn't find it.

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I can't find a case where there's been Frank's error and that was the reason for invalidating the warrant, the particularity requirement and the probable cause requirement where the evidence ultimately came in under some different theory.

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It seems to me that Frank's error because we are talking about law enforcement malfeasance does

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And in my opinion, should trump almost everything else, at least on the facts of this case.

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How do you respond to the inevitable discovery argument?

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I appreciate that, Your Honor.

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I won't talk about it.

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I know you know how that happens.

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But we're going back and reaching back now to the first warrant.

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That's the only thing that we could modify or amend that would ultimately get us to the search, which was opening the cell phone.

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My response to that is,

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It simply does not meet Riley and Russian.

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And there's nothing you can do to change that, because that was a drug warrant.

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The scope of that warrant was for drugs, not for child pornography.

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Thank you.

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Thank you, counsel.

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Good morning, Your Honors, and may it please the Court.

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My name is Christine Martins, and I represent the United States.

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Here, the District Court correctly concluded that despite a Fourth Amendment violation, the evidence would have been inevitably discovered.

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Therefore, it declined to suppress any of the evidence, allowing it all to come in at trial.

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The court has discussed with the defense the Russian case.

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So that's where I'd like to pick up that discussion.

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And to answer the court's question, really what happened in Russian is the straightforward proposition that cell phones must be searched pursuant to a warrant.

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And there were two cell phones that were seized incident to arrest.

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There was a later warrant application that sought to seek the home and any cell phones found therein.

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And what happened was the two cell phones that were seized incident to arrest were left out of the warrant itself.

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So when they were searched, they were searched without the warrant.

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There was simply a mismatch in the application for that warrant and the warrant itself.

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essentially a paperwork error.

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And because that was the level of error we're talking about, the court applied Leon Goodfaith.

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So on those facts, with that discussion of particularity and what was actually authorized to be searched under the warrant as issued, there's nothing extraordinary about the conclusion that this court reached in Russia.

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It simply stands for the proposition that a cell phone's search seized incident to arrest must be searched pursuant to a warrant.

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which is consistent with Riley.

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Now, when we're talking about what a warrant is and what a warrant authorizes, this court has consistently said that warrants for electronic devices are sufficiently particular so long as they name a particular crime that the material is being searched for or a class of evidence to be located during that search.

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And the warrant here meets those criteria.

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So... It's pretty sparse though compared to other warrants we see and I realize it's a state warrant but it's meager and records and or receipts electronic storage and goodbye.

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Normally it's more robust than that.

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That's true your honor.

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Is there a case that says that the low water mark of this warrant satisfactory?

[00:18:03] Speaker 02:
I think that we can gather that from the collection of cases cited in the briefing.

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When we talk about cases like Burgess, Russian, Laura, Palms is a case looking at an Oklahoma state warrant for human trafficking.

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The low watermark for particularity is to name the crime for which we are searching and the place to be searched.

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That there are better ways to accomplish that

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is certainly true, but it doesn't invalidate this warrant.

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And at any rate, this argument wasn't even directly raised to the district court.

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In the pleadings below, it's true that there were unsighted sentences, two of them, in the motions

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But they offered no analysis on why the drug search warrant would have not allowed this search.

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They offered no citation to authority.

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And usually, this court declines to review such presumptorily raised arguments.

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And even if that was enough to preserve it for review, the argument has changed on appeal.

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There was no argument at the district court about there always needing to be a warrant issued specifically for a cell phone, even if the cell phone was found in the home.

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where there was a warrant for the search and seizure of electronic data.

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This entire set of our briefing about Russian and Riley just simply didn't come up at the district court.

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And what's more, there has been no plain error analysis provided by the other side of this question in their opening briefing.

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So Your Honor, not only is it forfeited, it's also waived before this court.

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Additionally, it's just not what the law says.

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So everybody agrees that a cell phone should be searched pursuant to a warrant, but there's just no basis to conclude, based on Russian and Riley, that when we are searching a home pursuant to a warrant that authorizes the seizure of electronic evidence, that that would not also authorize

[00:20:06] Speaker 02:
the search of the devices found therein.

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It's a straightforward application of the general Fourth Amendment principle that once a warrant authorizes the search of a location, that officers may look in any container within that location that could hold the evidence they are authorized to search for and seize.

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I think it was the Loira case where the court talked about how a search warrant authorizing a search for a stolen car could certainly look in a garage but not in the attic and making that analogy to the container rule for the purpose of computer and electronic device searches.

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So here we have a search warrant which admittedly is rather sparse but legally sufficient

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authorizing the search of the defendant's home, including the seizure of electronic data, the records and receipts showing use and delivery of controlled substances.

[00:21:04] Speaker 02:
The cell phone, the iPhone that was seized pursuant to that drug warrant was simply a container within the location that was authorized to be searched under the unchallenged drug warrant, and officers were authorized to search the contents of that phone under that unchallenged drug warrant.

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I think also it's worth pointing out that the district court in its order called the drug search warrant unchallenged.

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And in the defendant's reply, there's some discussion about whether the defendant was somehow misled, about the nature of this argument.

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And it's worth pointing out that if the defendant was in fact confused about what was at issue,

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he had the opportunity to make a motion to reconsider.

[00:21:49] Speaker 02:
That's exactly what a motion to reconsider is for, is that there's been some confusion, misapprehension of the arguments or authorities, and he did not do so.

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He didn't submit any additional briefing whatsoever.

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So if there was some question about that first drug search warrant, it really should have been and could have been raised to the district court.

[00:22:09] Speaker 00:
So the first warrant is set in stone.

[00:22:12] Speaker 00:
Is the dismissal of the second warrant also set in stone?

[00:22:15] Speaker 00:
You agree you're not contesting the child born warrant?

[00:22:20] Speaker 02:
Well, I don't really agree, Your Honor.

[00:22:24] Speaker 02:
Certainly below the challenge was focused on whether these two warrants could be read together and whether they were read together and had sufficient probable cause.

[00:22:31] Speaker 02:
And then there was the Franks issue.

[00:22:33] Speaker 02:
I think that the district court was

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overly harsh with this officer.

[00:22:37] Speaker 02:
When we think about what that interview with the defendant's girlfriend actually was, it was about an hour and a half long, there were pending domestic violence charges between the girlfriend and the defendant, she sobbed, she was inaudible, and the officer wrote that cited affidavit without the benefit of studying the video the way that the lawyers in the court did afterwards.

[00:22:59] Speaker 02:
And I think that while it is true that

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the way that the officer represented the girlfriend's words did not match the video, I think what we ended up with was his impressions rather than quotes based on the rushed application without the ability to review that audio.

[00:23:17] Speaker 00:
Okay, but you're not relying on the second word.

[00:23:19] Speaker 00:
No, Your Honor, we don't have to.

[00:23:21] Speaker 00:
For our purposes, we can just pretend it doesn't exist.

[00:23:24] Speaker 02:
And that's exactly what the district court did.

[00:23:27] Speaker 02:
So really, there's multiple ways that inevitable discovery gets law enforcement to this evidence.

[00:23:34] Speaker 02:
Where the district court halted its analysis was that the unchallenged drug search warrant allowed law enforcement to access the data on this cell phone.

[00:23:45] Speaker 02:
And it specifically found that the computer forensic analyst, Caleb Forness,

[00:23:49] Speaker 02:
credibly testified that once we accessed that phone, regardless of whether he was doing that analysis for the child pornography search warrant or the drug search warrant, the search would have proceeded in the same manner.

[00:24:03] Speaker 02:
And that was that he would look at the settings to determine the user of the device, and then he would go to the camera roll.

[00:24:09] Speaker 02:
The government's exhibit five at the suppression hearing, which is also available to this court,

[00:24:14] Speaker 02:
was prepared to help demonstrate how immediately apparent the child pornography was in the camera roll.

[00:24:21] Speaker 02:
So looking in the camera roll, it was not the very first page, but all you had to do was scroll down just a little bit, and the child pornography was right there.

[00:24:30] Speaker 00:
But it was five videos that were charged, is that right?

[00:24:33] Speaker 02:
Five videos and a collection of 50-some-odd still images.

[00:24:37] Speaker 00:
And certainly by the time all of those were found and reviewed,

[00:24:45] Speaker 00:
investigator, the analyst could have sought another search warrant and did not.

[00:24:49] Speaker 02:
True, and that's because he thought he was operating under the validly issued child pornography warrant.

[00:24:56] Speaker 00:
And we just said that went poof.

[00:24:58] Speaker 00:
So what does that do to our analysis?

[00:25:01] Speaker 02:
I'm sorry, I didn't understand your question.

[00:25:03] Speaker 00:
That the second warrant is out of play.

[00:25:06] Speaker 00:
Granted, the analyst thought that he had the ability to keep on going, but it turns out he didn't.

[00:25:13] Speaker 00:
So where does that lead?

[00:25:14] Speaker 02:
Oh, for inevitable discovery.

[00:25:16] Speaker 02:
So when we're looking at the hypothetical scenario, if there hadn't been the second child pornography warrant,

[00:25:25] Speaker 02:
the unchallenged drug search warrant would have been executed in the very same way.

[00:25:29] Speaker 02:
So what the testimony was is that law enforcement always would have gotten to the pictures in that camera roll in this case.

[00:25:37] Speaker 02:
Now, that's where things become hypothetical because if they hadn't been acting pursuant to the authority of the second later invalidated child pornography warrant, the testimony was that the common practice

[00:25:51] Speaker 02:
was for law enforcement to stop what they were doing and apply for a second warrant when they found evidence of a crime other than what they were investigating.

[00:26:00] Speaker 02:
That was sort of the whole first part in this particular suppression hearing was explaining what they called the piggyback warrant process.

[00:26:08] Speaker 02:
So based on that routine practice, they would have stopped what they were doing and sought that second child.

[00:26:14] Speaker 00:
But it's more than a routine practice.

[00:26:17] Speaker 00:
you are now investigating another crime and you have exceeded the search warrant when you start to do that.

[00:26:25] Speaker 00:
And granted, the analyst did so thinking that he had the authority to do that based on the second warrant, but he didn't.

[00:26:32] Speaker 00:
And so you have a missing link.

[00:26:36] Speaker 00:
The analyst needed to go back and get a second search warrant as soon as he saw something that looked like child pornography.

[00:26:43] Speaker 02:
Well, that's not quite right.

[00:26:44] Speaker 02:
And so first of all, not every link in the investigative chain must be proved up to reach the conclusion that the evidence would be inevitably discovered.

[00:26:54] Speaker 02:
And the recent Tolbert case says so.

[00:26:56] Speaker 02:
Second, there was no reason for the analyst in what he was actually doing to stop what he was doing because he believed he was acting pursuant to the authority of a valid warrant.

[00:27:08] Speaker 02:
So as a matter of the actual chain of events.

[00:27:11] Speaker 02:
And then when we look at the hypothetical chain of events, for example, this case closely tracks Loera.

[00:27:19] Speaker 02:
So what the court said in Loera was that when a single line of investigation is interrupted by a search that is later deemed illegal, essentially we imagine what would have happened if that hadn't happened, right?

[00:27:35] Speaker 02:
So there doesn't have to be an alternative line of investigation.

[00:27:37] Speaker 02:
We don't fault the officers for continuing to do

[00:27:40] Speaker 02:
what they did because they believed they had lawful authority, we look at what would have happened if that intervening later deemed illegal search had never occurred.

[00:27:50] Speaker 02:
So that's why we're talking about here, had the officers instead executed the uncontested drug search warrant, they would have come to the child pornography when they find evidence of a different crime than what they are authorized to search for.

[00:28:05] Speaker 02:
They routinely apply for that second warrant specifically for that new crime.

[00:28:10] Speaker 02:
So that's where all of that evidence gets us to the conclusion that there would have ultimately been issued the second warrant specifically for the child pornography.

[00:28:19] Speaker 00:
And I'm not saying it's dispositive and I'm not even saying it's a live issue.

[00:28:23] Speaker 00:
But that's the piece that never happened.

[00:28:25] Speaker 00:
There was never any testimony from an analyst or a finding by the court that says,

[00:28:30] Speaker 00:
If we would have known that the second warrant wasn't any good, we would have stopped, and we would have gone and gotten ourselves a second warrant for child porn.

[00:28:38] Speaker 00:
That's absent from the record, or as I can tell.

[00:28:41] Speaker 02:
That's where I don't think it was said in so many words, not by the analyst, but Detective Shannon Daly did provide that testimony about when we find the evidence of an additional crime, we go through this piggyback warrant process.

[00:28:58] Speaker 02:
It was more generalized because that was not the issue that was actually being fought about in the district court.

[00:29:04] Speaker 02:
It was really the appellant's assertion that the second warrant was invalid, the iPhone had really been seized under the second warrant, so there was that factual issue, it was reading the warrants together, whether the piggyback process was appropriate.

[00:29:20] Speaker 02:
It wasn't further developed simply because that was not the point that was being fought about.

[00:29:27] Speaker 02:
I only have a little bit of time left, but I did want to comment on the 28J letter for the other side and this assertion that there's no way to use inevitable discovery when there's a franks error at issue.

[00:29:41] Speaker 02:
First of all, that would be a new and different argument raised in a 28J letter for why inevitable discovery wouldn't apply, so I don't believe that's proper.

[00:29:50] Speaker 02:
But I would ask the court to think about Nix versus Williams, the founding case in the inevitable discovery area.

[00:29:56] Speaker 02:
And in that case, the United States Supreme Court specifically overruled the Eighth Circuit, which had imposed a requirement that would be a finding of absence of bad faith before the inevitable discovery doctrine could apply.

[00:30:10] Speaker 02:
So in this area, law enforcement misconduct is really at the heart of the inevitable discovery doctrine.

[00:30:17] Speaker 02:
despite law enforcement misconduct, inevitable discovery allows the evidence to come in over the exclusionary rule.

[00:30:26] Speaker 02:
So that there was law enforcement misconduct determined by the district court here is no bar to the application of the doctrine.

[00:30:35] Speaker 02:
Any questions?

[00:30:38] Speaker 02:
Thank you, Your Honors.

[00:30:39] Speaker 00:
Thank you.

[00:30:40] Speaker 00:
Ms.

[00:30:40] Speaker 00:
Schmidt, your time had run, but I'll give you one minute and hold you to it unless there are questions, if you want to.

[00:30:46] Speaker 00:
Okay, thank you very much.

[00:30:48] Speaker 00:
Thank you for your arguments.

[00:30:49] Speaker 00:
The case is submitted and counsel are excused.