[00:00:01] Speaker 03:
Next case this morning is 24-8052, Peterson v. Kirsch, counsel for appellant.

[00:00:11] Speaker 03:
If you would make your appearance and proceed, please.

[00:00:15] Speaker 01:
Thank you, Your Honors.

[00:00:16] Speaker 01:
Jason Gay.

[00:00:17] Speaker 01:
I'm appearing on behalf of the appellant plaintiff, Ms.

[00:00:21] Speaker 01:
Melanie Peterson, who is seated at the table today.

[00:00:25] Speaker 01:
This comes before the court on two orders, an order granting motion to dismiss

[00:00:31] Speaker 01:
and a judgment dismissing the complaint in total with prejudice.

[00:00:35] Speaker 01:
We're asking this court to reverse and remand and allow the plaintiff to amend her complaint after its de novo review.

[00:00:46] Speaker 01:
The district court found that Ms.

[00:00:48] Speaker 01:
Pearson failed to state a claim and also evaluated several claims on a statute of limitations basis and then also addressed four

[00:00:58] Speaker 01:
Claims in particular, the malicious prosecution, invasion of privacy, which covered several claims, qualified immunity, which also covered several claims, and the abusive process.

[00:01:12] Speaker 01:
The appellate's brief touches on the federal state of claim issue in an unpublished opinion, Carol V. Ruth or Roth, 2019 Westlaw 13259869.

[00:01:30] Speaker 01:
But the rule that's articulated in that case and in several cases by this court is that it's not appropriate to dismiss unless it's futile for the plaintiff to amend.

[00:01:42] Speaker 01:
And that is not the case here.

[00:01:44] Speaker 01:
It would not have been futile for the plaintiff to amend or complain.

[00:01:48] Speaker 01:
And we don't believe that that was the appropriate resolution of the matter by the district court.

[00:01:55] Speaker 01:
This is not cited in either brief, but I would also like to point out to the court

[00:01:59] Speaker 01:
CLV Peacock, 32 Federal 4, 1011.

[00:02:04] Speaker 01:
That's a 10th Circuit case from 2022.

[00:02:07] Speaker 01:
I'm only pointing that case out to the court that it has applied that standard in cases where the plaintiff was represented by counsel.

[00:02:16] Speaker 01:
Those cases tend to revolve around pro se litigants who are incarcerated.

[00:02:24] Speaker 03:
Well, if you want to put it before us in a formal manner, please follow a 28J letter to us on that case.

[00:02:32] Speaker 03:
Yes, Your Honor.

[00:02:34] Speaker 03:
Let me ask you a question, if I may, about the malicious prosecution claim and the nature of favorable termination, that sort of standard that's at play.

[00:02:45] Speaker 03:
Did I read your briefing correctly to take the position that what we should look at is sort of

[00:02:52] Speaker 03:
Well, that we should adopt a charge-by-charge analysis of whether there was favorable determination or not.

[00:02:59] Speaker 03:
In other words, as part of the plea, there were certain dismissed charges.

[00:03:03] Speaker 03:
We would need to look at the nature of these charges individually to determine whether there was a favorable determination on her behalf.

[00:03:13] Speaker 01:
Yes, Your Honor.

[00:03:14] Speaker 01:
And I believe in the brief it says to Shavarini,

[00:03:19] Speaker 01:
VCU Napoleon 602, US 556.

[00:03:22] Speaker 01:
As the state points out, that was not mentioned by the plaintiff in her response to the motion dismissed, but that case was actually decided roughly six days after

[00:03:32] Speaker 01:
the response to the motion to dismiss was filed.

[00:03:35] Speaker 03:
Well, with a case or not a case, the nature of the argument needed to be made if it's going to be preserved, and that's the question I'm getting at.

[00:03:45] Speaker 03:
It seemed to me, and you can point me to where I'm wrong,

[00:03:49] Speaker 03:
that in the district court briefing, the posture that was taken is that favorable determination turned on the case and that whether there was a favorable determination was whether the determination actually was favorable to her looking at the case writ large as opposed to on a charge by charge basis.

[00:04:10] Speaker 03:
For example, I think when the issue was raised of we'll know if there's a favorable determination based upon the appeal that we may take.

[00:04:19] Speaker 03:
Did I understand that correctly, or do you have a different view?

[00:04:23] Speaker 01:
I believe you understand the argument correctly, Your Honor.

[00:04:26] Speaker 01:
But the other issue with that malicious prosecution claim is that the district court determined that it wasn't right yet, because the case had not been resolved in her favor or not in her favor.

[00:04:36] Speaker 01:
The district court did look to the state court record.

[00:04:39] Speaker 01:
But I would note that the judgment came out immediately after the court took that judicial notice, so there was never an opportunity to be heard.

[00:04:49] Speaker 01:
sort of overlooked the search that occurred on 19th of November in 2019.

[00:04:54] Speaker 01:
It only looked to the August 10th, 2019 search.

[00:04:59] Speaker 01:
Both were mentioned in the brief, or both were mentioned in the complaint.

[00:05:03] Speaker 01:
The 19th of November was mentioned in paragraphs 36 and 81, I believe.

[00:05:09] Speaker 01:
So there were two searches that led to the various claims, not just the one search that was mentioned in the complaint.

[00:05:17] Speaker 01:
The criminal case is problematic because

[00:05:19] Speaker 01:
The Wyoming criminal case did not look at searches that took place in places such as Texas, California, and Alaska, because Wyoming Game and Fish actually left the state and searched several properties looking for alleged Game and Fish violations before it ultimately resulted in, at one point, as the state district court notes, 21 misdemeanor charges.

[00:05:44] Speaker 01:
What was not known to the district court or the parties at the time that they filed the briefs was that this case would then

[00:05:49] Speaker 01:
ultimately be the criminal case would ultimately be resolved with only 10 counts as part of the plea agreement, which leaves at least 11 counts outside of the plea agreement resolved in the plaintiff's favor.

[00:06:03] Speaker 03:
Well, that's the point that I was trying to get at.

[00:06:06] Speaker 03:
I understand that to be the nature of your argument.

[00:06:08] Speaker 03:
But if you didn't make that argument below, why isn't that argument waived?

[00:06:12] Speaker 03:
Not only did you not make it below, at least my recollection is that you didn't invoke plain error, which is the nature of our preservation doctrine.

[00:06:21] Speaker 03:
And if you don't do that, you're done.

[00:06:23] Speaker 03:
I mean, at least for purposes of your entitlement for review, the issues waived.

[00:06:29] Speaker 01:
Well, I would argue that the district court didn't have jurisdiction because the matter was not yet right, so it should not have dismissed it with prejudice.

[00:06:36] Speaker 03:
Well, it's not a question for this particular purpose, just to be clear.

[00:06:40] Speaker 03:
It's not a question of what the district court did.

[00:06:42] Speaker 03:
It's a question of whether the nature of the argument that you're seeking to prevail on now

[00:06:47] Speaker 03:
the idea that if I heard you correctly, there are 11 charges that are on the outside.

[00:06:52] Speaker 03:
Well, what's the import of those 11 charges?

[00:06:54] Speaker 03:
That turns on whether we view the case as a whole or whether we look at those 11 charges.

[00:07:00] Speaker 03:
That's your argument here.

[00:07:01] Speaker 03:
Look at the 11 charges.

[00:07:03] Speaker 03:
What I'm saying, and I won't beat a dead horse, but what I'm saying is I didn't see any evidence that you made that kind of argument before the district court.

[00:07:11] Speaker 01:
And I believe that's correct, Your Honor.

[00:07:12] Speaker 01:
As I pointed out, the Chevroni case was decided after that responsible file.

[00:07:17] Speaker 01:
Okay.

[00:07:21] Speaker 01:
As far as statute of limitations, Your Honor, I started to touch on the 19th of November search, which would have been less than four years prior to the filing of the complaint in this matter.

[00:07:29] Speaker 01:
The district court just did not address the fact that there was a later search.

[00:07:34] Speaker 01:
It only addressed the one search in its look to the state record.

[00:07:39] Speaker 01:
And the reason why it would have only addressed that one search, as I pointed out, is because the 19th of November search

[00:07:44] Speaker 01:
occurred in Texas and was not a part of the Wyoming criminal case.

[00:07:49] Speaker 01:
So that decision to look to the state court record to discern facts and then take judicial notice of those facts immediately followed by a judgment precluded any opportunity for the plaintiff to be heard regarding the judicial notice of those facts and to explain the

[00:08:10] Speaker 01:
district court had failed to look at the 19th of November search and it wasn't in the state record because it was not a search that occurred in the state of Wyoming.

[00:08:18] Speaker 03:
And this is, just to be clear, this line of argument you're making now is in the context of the statute of limitations and whether the court correctly

[00:08:28] Speaker 03:
ruled against you on the statute of limitations or is this some other argument?

[00:08:32] Speaker 01:
No, yes, Chief Judge Holmes, that's correct.

[00:08:35] Speaker 03:
Okay.

[00:08:35] Speaker 03:
And on the statute of limitations argument, is the position that you're taking on appeal that

[00:08:45] Speaker 03:
that Ms.

[00:08:46] Speaker 03:
Peterson did not learn of this sort of the Fourth Amendment violation, if you will, because until Mr. McClure mentioned it to Mr. Hymas or when the discovery, in discovery you found out about that?

[00:09:00] Speaker 01:
Yes, Your Honor.

[00:09:03] Speaker 01:
The mention of Mr. McClure in September of 21 was the first time that Ms.

[00:09:06] Speaker 01:
Peterson was ever aware that

[00:09:09] Speaker 01:
the Game Efficient Vision might have exceeded the scope of the search warrants.

[00:09:13] Speaker 01:
And I know that the case has a lot of mention of the August 10 search.

[00:09:20] Speaker 01:
But at that time, arguably even the officers wouldn't have known that they're going to exceed the scope of the search warrants at a later date because they retrieved digital devices, 11 different digital devices that had a lot of information on them.

[00:09:34] Speaker 01:
and ultimately discovered over three terabytes of data that they had seized from those devices.

[00:09:42] Speaker 01:
Even the state prosecutor noted in his motion for the protective order that the discovery evidence was well beyond the scope of the case.

[00:09:52] Speaker 01:
And I don't believe that the state has ever made any argument that looking at Ms.

[00:09:55] Speaker 01:
Peterson's medical records or nude photos of Ms.

[00:09:57] Speaker 01:
Peterson had anything to do with an alleged Game of Fish misdemeanor violation.

[00:10:05] Speaker 01:
The only way that she could have known that they were looking at anything beyond what they alleged they were searching for in the warrants that had to do with game and fish violations would have been that first comment by Mr. McClure.

[00:10:21] Speaker 01:
I don't know that that was enough for her to understand that they had exceeded the scope.

[00:10:25] Speaker 01:
The first time that she could really know was on October 1st, but either of those dates... And October 1st being the discovery date or some other date?

[00:10:32] Speaker 01:
The discovery date.

[00:10:33] Speaker 01:
Or maybe it's October 4th, I mean.

[00:10:35] Speaker 01:
Okay.

[00:10:35] Speaker 01:
All right.

[00:10:37] Speaker 03:
Well, getting to that, and again,

[00:10:40] Speaker 03:
just so I can line up arguments and make sure we're on the same sheet of music.

[00:10:44] Speaker 03:
I mean, at least as I understood, in the district court, the argument was that she didn't know until it was held unlawful by the court in the criminal case.

[00:11:01] Speaker 01:
I believe that argument was made, Your Honor.

[00:11:03] Speaker 01:
Well, were these other arguments made?

[00:11:06] Speaker 01:
The fact that she did not know until September is actually in the complaint, Your Honor.

[00:11:15] Speaker 03:
Okay.

[00:11:16] Speaker 03:
And September being the McClure date?

[00:11:18] Speaker 03:
That's correct, Your Honor.

[00:11:19] Speaker 03:
Okay.

[00:11:19] Speaker 03:
But when the argument was made in a briefing posture before the district court, was it not that she wouldn't have known until it was held unlawful, but on appeal?

[00:11:31] Speaker 01:
I believe that argument was made, Your Honor, yes.

[00:11:34] Speaker 00:
You argued below that the accrual date was May 9, 2022, and now you argued, you abandoned that as far as I can tell, and now you're arguing, at least in your briefing, that the accrual date was July 26, 2021.

[00:11:49] Speaker 00:
What was that date?

[00:11:55] Speaker 01:
I do believe that's in the brief, Your Honor, but I

[00:11:59] Speaker 00:
First of all, I think whatever argument you're making now has been waived because you've abandoned the argument you made below, which was that it was May 9, 2022.

[00:12:09] Speaker 01:
And that was waived in the brief.

[00:12:12] Speaker 01:
I realize that, Your Honor.

[00:12:16] Speaker 00:
Can you talk about the... I mean, the district court, I think, found the statute of limitations barred also your privacy claim, but I

[00:12:29] Speaker 00:
The court also ruled alternatively, obviously, on qualified immunity.

[00:12:35] Speaker 00:
And as far as I could see, you didn't make any argument below on either prong of qualified immunity.

[00:12:43] Speaker 00:
So didn't you forfeit that argument below?

[00:12:46] Speaker 01:
I do know that the... And I think the district court mentioned that you had... Yeah, I do know that the district court mentioned that, Your Honor.

[00:12:53] Speaker 01:
And I believe that the complaint contains

[00:13:00] Speaker 01:
enough alleged facts for the reasonable inferences to be made in favor of the plaintiff and allow her an opportunity to amend her complaint.

[00:13:08] Speaker 01:
As I mentioned, there is... Well, this isn't about amending the complaint.

[00:13:13] Speaker 00:
This is about responding to a qualified immunity motion.

[00:13:19] Speaker 00:
And it's your burden to respond and to establish the constitutional violation and the clearly established

[00:13:27] Speaker 01:
Yes, and and I believe in nature of it.

[00:13:30] Speaker 01:
I'm sorry go ahead, and I just don't see where you met that burden I believe in the district court that the decision was made to argue the law on it, but the facts were not sufficiently explored outside of the complaint her And I would like to reserve the one minute for rebuttal yeah, thank you

[00:13:56] Speaker 04:
Good morning, Your Honors.

[00:13:58] Speaker 03:
Good morning.

[00:14:00] Speaker 04:
My name is Timothy Miller.

[00:14:02] Speaker 04:
I'm at the Wyoming Attorney General's Office.

[00:14:06] Speaker 04:
And in this appeal, I represent Dustin Kirsch, Adam Hymas, and John Demery, who are employees of the Wyoming Game and Fish Department.

[00:14:20] Speaker 04:
The district court correctly dismissed the second amended complaint in full.

[00:14:28] Speaker 04:
including the remaining claims against the remaining defendants.

[00:14:34] Speaker 04:
The unlawful search and seizure claim is barred by the statute of limitations.

[00:14:41] Speaker 04:
The invasion of privacy claim is barred by both prongs of qualified immunity.

[00:14:47] Speaker 04:
The malicious prosecution claim is barred because a plaintiff did not allege that

[00:14:57] Speaker 04:
the case had terminated in her favor.

[00:15:01] Speaker 04:
And in fact, based on the record as it is at this moment, it did not terminate in her favor.

[00:15:10] Speaker 04:
And then there is a supplemental, a request to supplement the record that confirms that fact.

[00:15:20] Speaker 03:
We have now heard an argument... Well, even in the second supplement,

[00:15:25] Speaker 03:
Under their theory, if you look at a charge by charge basis, then one would have to decide whether those other charges that were dismissed terminated in her favor.

[00:15:35] Speaker 03:
Isn't that right?

[00:15:37] Speaker 04:
I think it's all counts that were dismissed or dismissed pursuant to a plea agreement as set forth in the record.

[00:15:45] Speaker 04:
And so even if you consider those on a count by count basis, they were all dismissed pursuant to a plea agreement.

[00:15:53] Speaker 04:
And the law, not in this circuit,

[00:15:55] Speaker 04:
I recognize that in other circuits is that a dismissal in accordance with the plea agreement is not a favorable termination for purposes of malicious prosecution.

[00:16:07] Speaker 04:
So I understand the court's point.

[00:16:09] Speaker 04:
Let's imagine a case where the prosecutor just voluntarily gets rid of some counts and goes forward on some others.

[00:16:19] Speaker 04:
That's not what happened here.

[00:16:20] Speaker 04:
There was a plea agreement, and it's in the supplemental record.

[00:16:25] Speaker 04:
And that's how those counts were dismissed.

[00:16:30] Speaker 03:
I understand that.

[00:16:31] Speaker 03:
The point I'm getting at is simply that it is not as open and shut as at least I understood you to be initially framing it or as I heard it anyway.

[00:16:41] Speaker 03:
The bottom line is it's an open legal issue as to what the implication is of these dismissed counts in a plea agreement, right?

[00:16:50] Speaker 03:
In this circuit?

[00:16:51] Speaker 04:
It is an open question in this circuit.

[00:16:53] Speaker 04:
OK.

[00:16:54] Speaker 03:
Yes.

[00:16:54] Speaker 04:
Yes, that's correct.

[00:16:56] Speaker 03:
Let me ask a question about the Fourth Amendment claim.

[00:17:00] Speaker 03:
I know they searched the lodge, at least by my notes here on August 10, 2019.

[00:17:06] Speaker 04:
Yes.

[00:17:07] Speaker 03:
When did they execute the subsequent warrant to search the contents of the devices?

[00:17:15] Speaker 04:
Well, there's no subsequent warrant

[00:17:19] Speaker 04:
alleged in the Second Amendment complaint.

[00:17:22] Speaker 04:
There's nothing in the record on that subject.

[00:17:29] Speaker 04:
The position on the statute of limitations is that on August 10, 2019, there was a search.

[00:17:39] Speaker 04:
It's alleged the search went on for six hours.

[00:17:44] Speaker 04:
It was alleged below that

[00:17:46] Speaker 04:
Ms.

[00:17:47] Speaker 04:
Peterson was unlawfully arrested during the search, was unlawfully denied counsel, that the search was very distressing to her family, and that the search was performed pursuant to an invalid warrant.

[00:18:01] Speaker 03:
And let me back up for a second.

[00:18:03] Speaker 03:
If in fact there's nothing in the records

[00:18:06] Speaker 03:
in specifically in the Second Amendment, a client, Second Amendment complaint related to the date of the subsequent search of the devices.

[00:18:17] Speaker 03:
Can we really resolve the statute of limitations issue on a 12B6?

[00:18:21] Speaker 03:
I mean, if the reference point is the complaint.

[00:18:25] Speaker 04:
Yes, because an injury occurred on August 10, 2019 when the data was seized.

[00:18:34] Speaker 04:
By their theory of the case,

[00:18:36] Speaker 04:
That was unlawful.

[00:18:38] Speaker 04:
That seizure of, which was no secret to Ms.

[00:18:42] Speaker 04:
Peterson, she was there, that seizure of devices that allegedly contained irrelevant information and personal information occurred at that time.

[00:18:55] Speaker 04:
That was, by their theory of the case, an unconstitutional injury, along with the other alleged unconstitutional injuries that occurred at that time.

[00:19:06] Speaker 04:
What they're getting at is the full extent of the injury.

[00:19:13] Speaker 04:
And the law in this circuit is the statute of limitations starts to run when you have an injury, even if the full extent of the injury is not known or predictable.

[00:19:26] Speaker 04:
So they say in the brief, we have no way of knowing.

[00:19:29] Speaker 04:
They would do whatever they do.

[00:19:31] Speaker 04:
Well, even if the injury is not predictable, that does not start running in statute of limitations.

[00:19:38] Speaker 04:
And so again, we are also really speculating here.

[00:19:48] Speaker 04:
We don't have a Second Amendment complaint that alleges there should have been another warrant.

[00:19:55] Speaker 04:
It's just not there.

[00:19:57] Speaker 04:
And so we're kind of grasping.

[00:20:01] Speaker 04:
creating a claim where there's no factual basis for the claim alleged in the Second Amendment complaint.

[00:20:11] Speaker 04:
And the claim is not made at all.

[00:20:15] Speaker 04:
I would also, I guess I will address the question of there is a stray reference, I believe in one paragraph, to a November 9, 2019 search.

[00:20:26] Speaker 04:
The district court did address it in a footnote and said,

[00:20:31] Speaker 04:
Plaintiff hasn't alleged any facts regarding this search.

[00:20:35] Speaker 04:
I mean, there's just nothing for me to do with that.

[00:20:42] Speaker 04:
I'm sorry, just to be clear, November... I'm sorry, I believe it's November 9 of 2019.

[00:20:48] Speaker 04:
Okay, got it.

[00:20:53] Speaker 04:
So, what I would say going back is what we've had is

[00:21:01] Speaker 04:
an argument to reverse a dismissal of a case that begins with very nearly a concession that the pleading below doesn't state a cause of action because the argument begins with we should have been allowed to amend.

[00:21:19] Speaker 04:
Well, no motion to amend was filed below.

[00:21:23] Speaker 04:
Again, it's a drive-by, you know, and if you're going to dismiss it, you should amend.

[00:21:30] Speaker 04:
That's all we have below.

[00:21:32] Speaker 04:
We don't have a motion to amend.

[00:21:35] Speaker 04:
We don't have, as required by the local rule, a redlined draft of the proposed amendment and then a clean draft of the proposed amendment that never came up.

[00:21:47] Speaker 04:
So that is not an issue.

[00:21:48] Speaker 04:
In terms of the search, the argument was waived, the argument that is being made now.

[00:21:57] Speaker 04:
It was forfeited.

[00:21:59] Speaker 04:
by not being made below and because plain error was not alleged in appellant's brief, then it has now been waived.

[00:22:09] Speaker 04:
And we have to look at what's going on here, okay?

[00:22:13] Speaker 04:
We had this search in April of August of 2019.

[00:22:18] Speaker 04:
As the district court correctly ruled, the statute starts running at the time of the search.

[00:22:26] Speaker 04:
So in Wyoming, that's four years.

[00:22:30] Speaker 04:
For the last two years of that period, Ms.

[00:22:34] Speaker 04:
Peterson had lawyers who were arguing the search and seizure was unconstitutional.

[00:22:43] Speaker 04:
And for whatever reason, the balance of the time went by.

[00:22:51] Speaker 04:
The rest of the limitations period ran, and the case was filed too late.

[00:22:59] Speaker 04:
That is frankly what happened in this case.

[00:23:04] Speaker 04:
And I will say, I don't believe Mr. Gay was involved in this matter during that time period.

[00:23:15] Speaker 04:
The court presumes, this court presumes, that the statute of limitations starts to run from the date of the action of the police is challenged, and that's August of 2019, and the statute ran.

[00:23:30] Speaker 03:
Let me just follow up to get clear on one point.

[00:23:33] Speaker 03:
Yes.

[00:23:34] Speaker 03:
You addressed our case law speaking of the notion that the clock begins to run at the injury as opposed to when the fullness of the injury is determined.

[00:23:49] Speaker 03:
That's your understanding, right?

[00:23:50] Speaker 03:
Yes.

[00:23:51] Speaker 03:
Okay.

[00:23:53] Speaker 03:
My question is, if the unique nature of the injury really here relates to specific

[00:24:01] Speaker 03:
photos that were in her electronic material.

[00:24:04] Speaker 03:
In other words, this exposure related to her cell, her person, why when the search initially took place,

[00:24:13] Speaker 03:
should she presume that the scope of that search would be a sort of wholesale rummaging through to look at even pictures of her new person?

[00:24:24] Speaker 03:
I mean, why should the presumption be that that injury, that discrete injury, took place at the time of the initial search?

[00:24:36] Speaker 04:
Well, I would say that from the moment

[00:24:40] Speaker 04:
The pictures or whatever, those pictures were on the devices that were seized.

[00:24:46] Speaker 04:
And it is alleged that they were irrelevant to the wildlife crimes that were suspected.

[00:24:54] Speaker 04:
That seizure is an injury.

[00:24:58] Speaker 04:
I don't know of any law that divides up the injuries in some way so that we have a discrete constitutional

[00:25:09] Speaker 04:
violation.

[00:25:10] Speaker 04:
I would also say that according to the Second Amendment complaint, the devices were returned to Ms.

[00:25:17] Speaker 04:
Pearson, it either says a few days or several days after the search.

[00:25:23] Speaker 04:
So whatever downloading took place, took place within days of this search, I think, you know, once the government has the data,

[00:25:38] Speaker 04:
Government may look at the data.

[00:25:41] Speaker 03:
That's not always true.

[00:25:43] Speaker 03:
I mean, you're not supposed to grummage for everything that's in somebody's phone.

[00:25:48] Speaker 03:
I mean, the Supreme Court tells us that.

[00:25:49] Speaker 03:
I mean, you're supposed to be looking for certain things that are evidence of criminality.

[00:25:55] Speaker 03:
The notion your phone has an encyclopedic level of things about you as a person, the fact that you have my phone doesn't mean you can look at everything on my phone, does it?

[00:26:06] Speaker 04:
No, it does not.

[00:26:07] Speaker 04:
And I'm sorry, I used the word may and I didn't mean have lawful authority to.

[00:26:12] Speaker 04:
I'm just saying that the government sees the data and could do whatever and it is alleged that the seizure of that data on August 10, 2019 was unconstitutional.

[00:26:27] Speaker 04:
Now we have a new argument on appeal that somehow we have

[00:26:32] Speaker 04:
We're going to date the statute of limitations running from an entirely different date in some way related to and I can't figure out how exactly but in some way related to Well do we have the do we have the search the search warrant or the probable cause affidavit here That those papers are not in the record are they are they?

[00:26:59] Speaker 02:
referenced in the complaint No

[00:27:02] Speaker 04:
I mean, they say a search warrant, that the search was conducted pursuant to a warrant.

[00:27:09] Speaker 04:
That's correct.

[00:27:10] Speaker 02:
I mean, I think it's, I'm just, for purposes of my question, I'm going to assume that the scope of the search warrant did not allow the government to look at photos on the phone or personal data that's not related to

[00:27:32] Speaker 02:
evidence of criminality.

[00:27:34] Speaker 02:
And that would include personal photos in this case.

[00:27:37] Speaker 02:
And if I understand your theory correctly, a plaintiff or a person who's been searched and the phone is seized, she has an invasion of privacy claim.

[00:27:51] Speaker 02:
It's based on that they looked at information on her device that they should not have.

[00:27:55] Speaker 02:
And if I understand your theory, well, the injury is the seizure.

[00:28:00] Speaker 02:
Is every person going to have an invasion of privacy claim on the theory that the government's gone beyond the scope of the search?

[00:28:10] Speaker 02:
I think the answer would be no.

[00:28:12] Speaker 02:
But the invasion of privacy claim accrues when she knows or should have known that they looked at private information.

[00:28:22] Speaker 02:
And that seems to me that would be the accrual of the statute of limitations.

[00:28:27] Speaker 04:
That's correct.

[00:28:28] Speaker 04:
On the invasion of privacy claim, and I do not believe the district court rules that the statute of limitations had been blown on that issue.

[00:28:37] Speaker 04:
The problem with invasion of privacy is they say the only plausible, they say this in their brief, the only plausible allegation we have as to dissemination of the data to other people is dissemination to Peterson in the criminal case.

[00:28:55] Speaker 04:
And we have just one

[00:28:57] Speaker 04:
A straight comment.

[00:28:59] Speaker 04:
I am past my time.

[00:29:01] Speaker 04:
So if there are no other questions, the appellant appellees request affirmative motion of the dismissal.

[00:29:11] Speaker 03:
Thank you.

[00:29:12] Speaker 03:
Thank you, Council.

[00:29:17] Speaker 03:
Could you just give him a full minute, please?

[00:29:21] Speaker 01:
Yes, Your Honor.

[00:29:21] Speaker 01:
Thank you, Your Honor.

[00:29:24] Speaker 01:
First, I'd like to go to the question of fact regarding termination in favor.

[00:29:29] Speaker 01:
The second supplement does show that the criminal case was ultimately terminated in regards to a plea agreement on a fifth amended complaint in the criminal case, which included only 10 counts.

[00:29:41] Speaker 01:
I would point the court to document 29, page 157, which is a

[00:29:46] Speaker 01:
one of the pages from the district court, the state district court's order, which references the 21 counts.

[00:29:52] Speaker 01:
Obviously, there were six different criminal information in that case, with the fifth amended information being the final, and it only included 10 counts.

[00:30:02] Speaker 03:
So you're talking about information that would be in the second supplement that sought to be introduced?

[00:30:07] Speaker 01:
Yes, Your Honor.

[00:30:08] Speaker 01:
Okay.

[00:30:11] Speaker 01:
So that shows that the state prosecutor banned at least 11 counts that were withdrawn or otherwise dismissed and they were external plea agreement.

[00:30:20] Speaker 01:
The plea agreement makes it clear that there's nothing additional in there.

[00:30:24] Speaker 01:
There was one other point I'd like to address, but I'm out of time, Your Honor.

[00:30:29] Speaker 01:
Go ahead and say it.

[00:30:30] Speaker 01:
Thank you, Your Honor.

[00:30:32] Speaker 01:
So regarding the

[00:30:36] Speaker 01:
The search on November 19th, those same 11 devices were seized by the state, and that's why they're mentioned together, August 10th and November 19th, because the state re-seized those devices in Texas on November 19th, 2019.

[00:30:51] Speaker 01:
There was presumably something wrong with the download or they otherwise needed to download those devices again, Your Honor.

[00:31:01] Speaker 03:
All right.

[00:31:01] Speaker 03:
Thank you, Counsel.

[00:31:03] Speaker 03:
Case is submitted.

[00:31:05] Speaker 03:
As we noted, we'll take a 10-minute break right now and we will return to the last two cases this morning.