[00:00:00] Speaker 03: We'll turn to the first case on the argument calendar, case 24-5419, United States versus Smith. [00:00:07] Speaker 03: Good morning. [00:00:08] Speaker 04: Good morning. [00:00:09] Speaker 04: Good morning, your honors, and may it please the court. [00:00:12] Speaker 04: Justine Bonner on behalf of appellant Latonya Smith. [00:00:16] Speaker 04: I would like to reserve two minutes of my time for rebuttal. [00:00:20] Speaker 04: And I'll watch the clock. [00:00:21] Speaker 04: The question before the court this morning is a narrow one. [00:00:25] Speaker 04: Did Miss Smith receive ineffective assistance of counsel when her trial counsel [00:00:30] Speaker 04: failed to seek suppression of the evidence derived from her unlawfully seized iPhone. [00:00:36] Speaker 04: The answer to this question is yes. [00:00:39] Speaker 04: Under the Supreme Court's decision in Riley v. California, cell phones merit heightened privacy protections. [00:00:47] Speaker 04: After Riley, no reasonable attorney would have failed to challenge the seizure of a cell phone under the facts of this case. [00:00:56] Speaker 02: A search warrant... Let me ask you this. [00:00:59] Speaker 02: The record seems to indicate that the investigators obtained the second warrant because they wanted to obtain evidence. [00:01:06] Speaker 02: I'm reading this evidence of location monitoring, navigation, or registration on cell phone towers from his cell phone. [00:01:13] Speaker 02: Under the circumstances, how does your claim fit within the first prong with respect to [00:01:23] Speaker 02: attorney failure to comply with the requirements of the community. [00:01:27] Speaker 02: I mean, it's perfectly reasonable, is it not, for the attorney to recognize that this was acceptable? [00:01:35] Speaker 04: Your Honor, it's the second warrant, the November warrant that excludes cell phones. [00:01:40] Speaker 04: That warrant makes it clear that cell phones are excluded from the October warrant. [00:01:46] Speaker 02: Well, even if that's true, [00:01:49] Speaker 02: The reality is we're still talking about electronic equipment and electronic data storage devices, which cell phones certainly would at least conceivably fall within that. [00:02:01] Speaker 02: And then you have the second warrant. [00:02:02] Speaker 02: So I just struggle with how Strickland's first prong is violated here. [00:02:08] Speaker 04: Your Honor, computers in the first warrant does not encompass cell phones. [00:02:12] Speaker 04: Under Riley, we know that cell phones are special under the Fourth Amendment. [00:02:16] Speaker 04: We fit them in our pockets and they contain the sum of our private lives. [00:02:21] Speaker 04: We don't presume intrusions into the contents of a cell phone valid. [00:02:25] Speaker 04: The reasons to do so need to be clear and specific. [00:02:29] Speaker 04: In light of the specific limits present in the October search warrant and affidavit, it is difficult to embrace the government that cell phones are included within. [00:02:39] Speaker 04: Whereas computers are referred to 79 times in the October warrant and affidavit, there is no reference to cell phones. [00:02:48] Speaker 03: So yeah, it doesn't say cell phones, but there are some other broader terms like all other electronic equipment or internet access devices. [00:02:57] Speaker 03: So why do you think cell phones wouldn't fall under that? [00:03:00] Speaker 04: Your Honor, the standard for determining scope requires an objective assessment of the circumstances surrounding the issuance of the search warrant, the contents of the warrant, and the circumstances of the search. [00:03:12] Speaker 04: And here, that objective assessment supports the conclusion that the October warrant's scope does not include cell phones. [00:03:19] Speaker 04: They are not mentioned in the affidavit or the warrant, which are to be read together. [00:03:24] Speaker 04: and which are limited to computers. [00:03:26] Speaker 04: The warrants list of items to be seized includes only computers and electronic equipment used with a computer to use or create the physical letters described in the affidavit, such as printers and copy machines. [00:03:42] Speaker 04: And an affidavit can only narrow, not expand, a warrant [00:03:47] Speaker 04: And here, Inspector Steele states in paragraph 23 of his affidavit, his belief that these letters were created by a computer using a word processing program and an electronic printer, and that the evidence would be recovered from storage devices associated with the computer. [00:04:04] Speaker 04: And in paragraph 29, even though forensic searches of cell phones and computers differ, [00:04:11] Speaker 04: Inspector Steele references only computers in his discussion of the necessity for an offsite forensic analysis of Misfits computers. [00:04:21] Speaker 03: What about the fact that the affidavit references the threatening communications made through Facebook and sort of common knowledge that people have Facebook on their phones? [00:04:32] Speaker 04: Your Honor, Facebook communications are never discussed in the affidavit as originating from a cell phone. [00:04:39] Speaker 04: In contrast to computers, there is no description as to why seizing a cell phone would likely produce evidence of those messages. [00:04:48] Speaker 04: The affidavit only provides a basis to look for evidence of letters, which appear to be produced on a computer with a word processing capabilities. [00:05:00] Speaker 02: So I'm interested in your thoughts on the following. [00:05:04] Speaker 02: In your Oprah breadth analysis, [00:05:06] Speaker 02: There's a question of whether the investigators could have applied for a narrower search warrant. [00:05:12] Speaker 02: But at that point, when the first warrant was sought, the investigators didn't know what devices Smith had. [00:05:20] Speaker 02: So how could they have sought a narrower warrant at that point? [00:05:25] Speaker 04: They didn't know what devices they had. [00:05:29] Speaker 04: They knew that they were looking for a computer, and that's made obvious by the words of the affidavit. [00:05:34] Speaker 04: And in fact, it's the second warrant that makes clear that cell phones were not contemplated in the October warrant, because that uses special limiting language to supplement the list of items, to expand the scope of items that were included in the October warrant. [00:05:54] Speaker 04: It's made clear by the second one. [00:05:57] Speaker 00: Counsel, in a trial, Smith called a forensic expert who testified that [00:06:04] Speaker 00: Someone other than Smith could have used the email to access the printer and then Smith's mother also testified saying that other people had access to Smith's password for her phone and could have used the printer. [00:06:19] Speaker 00: Isn't the implication is that there's a password on the phone that was triggered on the access to the printer? [00:06:26] Speaker 04: Your honor respectfully the ends don't justify the means just because [00:06:30] Speaker 04: They were found on her iPhone does not answer the scope of the warrant where cell phones were not mentioned It's the language of the warrant that controls and that the language of the warrant in the affidavit do not does not include cell phones and Moving on you're hanging your whole case based on Riley. [00:06:51] Speaker 02: Is that correct? [00:06:53] Speaker 04: No, your honor. [00:06:53] Speaker 04: I'm hanging part of my cases on Riley. [00:06:57] Speaker 04: It's Riley that [00:06:58] Speaker 04: should make us extra cautious about the search of the cell phone. [00:07:04] Speaker 04: So that is part of my argument. [00:07:07] Speaker 04: And the other part of my argument is that the search word and the affidavit read together specifically narrow the scope of the search to computers associated with word processing programs that were meant they don't contemplate, that word and the affidavit don't contemplate cell phones. [00:07:25] Speaker 02: I guess what I struggle with is, you know, if we were in a law school class and we were talking about the proper way to prepare affidavits for warrants and the like, there'd be a lot we could talk about along what you're saying. [00:07:39] Speaker 02: But your, your claim is that council was just obviously incompetent because he didn't grab hold of this prong. [00:07:49] Speaker 02: And I'm still struggling with how you meet the first prong of Strickland. [00:07:54] Speaker 02: This may have not been a perfect warrant. [00:07:57] Speaker 02: I get that. [00:07:58] Speaker 02: But it did talk about electronic equipment, printers and the like. [00:08:05] Speaker 02: It specifically covers scanners, digital cameras, and internet access devices. [00:08:09] Speaker 02: And as my colleague pointed out, certainly cell phones are internet access devices. [00:08:15] Speaker 02: On my phone, I can actually work my printer from my iPhone. [00:08:18] Speaker 02: So it's not one of those things you say, oh, well, I just missed it. [00:08:23] Speaker 02: It's a question of defining what these terms mean, and I'm struggling with how you satisfy the first prong of Strickland in doing so. [00:08:33] Speaker 04: Yes, Your Honor. [00:08:33] Speaker 04: I'd like to answer your question, but I'm moving into my rebuttal time. [00:08:36] Speaker 03: Why don't you go ahead and answer, and we'll make sure you have two minutes when you return. [00:08:40] Speaker 04: Thank you so much, Your Honor. [00:08:42] Speaker 04: Your Honor, Strickland's first prong [00:08:46] Speaker 04: I respectfully disagree. [00:08:48] Speaker 04: Under an objectively reasonable representation, every competent criminal attorney going to trial would have filed a motion to dismiss in this instance. [00:09:02] Speaker 04: Looking at this case from the perspective of a lawyer that's going to defend their client in a case who knows it's going to a trial, they would have filed the motion, this motion to suppress where the [00:09:15] Speaker 04: Evidence derived from this iPhone formed the crux of the case, as argued by the government in closing, and where the search warrant and the affidavit did not mention cell phones. [00:09:28] Speaker 04: And I'd like to reserve the balance of time. [00:09:31] Speaker 03: We'll put two minutes on the clock when you come back. [00:09:33] Speaker 03: Thank you. [00:09:42] Speaker 01: May it please the court, Daniel Zip, on behalf of the United States. [00:09:45] Speaker 01: Your Honor, the defense attorney in this case did not perform, performance did not fall below the range of reasonable professional assistance. [00:09:54] Speaker 01: As the district court properly found, there was ample PC for seizure of the phones in this case, the warrant was sufficiently particular, and the language was broad enough to encompass seizure of the cell phones. [00:10:07] Speaker 01: Specifically, if you look at attachment B, it authorized the [00:10:11] Speaker 01: seizure of computers, peripherals, and all other electronic equipment used in connection with creating or transmitting threats or threatening communications. [00:10:20] Speaker 01: And then at the bottom of the attachment, it defined communications to include things like voicemails and text messages, which you would expect to find on a phone. [00:10:28] Speaker 03: I mean, the oddity, of course, we can look at language in here and say, well, that would encompass a phone. [00:10:33] Speaker 03: The oddity is that the phone just wasn't mentioned when it seems like a fairly obvious thing one would want to have access to. [00:10:41] Speaker 03: So that's kind of a strange piece of this case. [00:10:44] Speaker 01: It certainly would have been better to list phones specifically there, but the language that the agents used was sufficiently broad to encompass smartphones, which as the district court held are sort of like mini computers. [00:10:57] Speaker 01: Certainly the language of all... It's true. [00:10:59] Speaker 03: It's just that normally we don't say, pass me your mini computer and I'll take a selfie of us. [00:11:05] Speaker 03: It's just not the way we speak. [00:11:08] Speaker 03: You could say it covers it, but it's a little unnatural. [00:11:13] Speaker 01: Understood, Your Honor. [00:11:14] Speaker 01: But I still think for purposes of suppression, it fits within the language of the warrant. [00:11:21] Speaker 00: Counsel, doesn't the fact that the agents sought a second warrant specifically for a cell phone indicate that they had some concern about the scope of the first one? [00:11:29] Speaker 01: Not necessarily, Your Honor. [00:11:30] Speaker 01: I think first, the subjective intent of the agents doesn't matter in this analysis. [00:11:34] Speaker 01: But even if it did, as the district court [00:11:36] Speaker 01: found that the facts of this case were such that they got the first warrant. [00:11:41] Speaker 01: Before they executed that, then Ms. [00:11:43] Speaker 01: Smith traveled to Reno and committed this assault on one of the victims. [00:11:47] Speaker 01: And in the affidavit of the second warrant, they made clear that it was based on this new conduct and that they were seeking GPS information on the phone. [00:11:55] Speaker 01: So one [00:11:57] Speaker 01: interpretation is not that they sort of realized that they had seized things that they weren't supposed to, but just before sort of the facts changed in the time period between the first warrant and the second, such that they wanted to make sure that the new warrant covered the type of GPS evidence relevant to that new assault. [00:12:16] Speaker 03: I think your opposing counsel is kind of making the argument, well, there's a strong flavor of the affidavit that's talking about the use of a [00:12:24] Speaker 03: like an actual computer, right, the use of, that the defendant used a computer to study for exams, for example, and so therefore was likely to have used a computer to send threatening messages. [00:12:35] Speaker 03: And I guess the nature of the messages were such that they appeared, you know, some of them printed. [00:12:39] Speaker 03: And so I think what she's saying is, you know, when you take a look at this as all, it's more naturally referring to what we think of traditionally as computers, like a desktop computer, a laptop. [00:12:53] Speaker 01: even if that's true, there was sufficient probable cause, in that at the beginning of the affidavit, they described two Facebook threats made to Ms. [00:13:03] Speaker 01: Radek, followed by a sort of hard copy threat mailed to her house, followed by a third Facebook threat that was the most serious of the three. [00:13:11] Speaker 01: That sort of combination there is enough to find probable cause for a search of a phone, regardless of what the overall tone may have been geared towards computers. [00:13:21] Speaker 01: And then secondly, [00:13:23] Speaker 01: Supreme Court has made clear that when analyzing the language in affidavits like this, these are drafted by non-lawyers in the midst of haste of criminal investigation, and the resolution of doubtful or marginal cases should be determined with a preference for the warrant. [00:13:38] Speaker 01: So even if one interpretation is that sort of the tone was geared towards computers, viewing it in that context in light of the Facebook analysis, there's enough here to provide probable cause. [00:13:51] Speaker 02: Council, let me ask you this. [00:13:53] Speaker 02: I did not ask your opposing counsel yet about this, but are you aware of any case, published a case, where an attorney has been found guilty of ineffective assistance of counsel for doing or not doing what happened in this case? [00:14:11] Speaker 01: No, Your Honor, I'm not aware of any cases along those lines. [00:14:16] Speaker 01: sort of one other factor I think that would go into analysis of whether this was ineffective is even if this court were to find that there wasn't probable cause for the seizure of the phones, there would still be a good faith exception that would apply here and that the agents, at the very least the warrant wasn't facially invalid that any agent picking it up would automatically know that there was something wrong with it. [00:14:39] Speaker 01: So the fact, even if there wasn't probable cause, the agent still used the warrant to conduct the search [00:14:44] Speaker 01: And this is not the type of situation that the exclusionary rule should apply. [00:14:49] Speaker 01: And then finally, sort of stepping back, this, we're not really on, well not really, but we're not on direct review of a suppression motion. [00:14:58] Speaker 01: This is ultimately about whether putting yourself in the shoes of defense counsel at the time of preparing for trial, whether this is the type of motion that would be so obvious that it would fall below the range of reasonable professional assistance not to make the motion. [00:15:13] Speaker 01: Here, clearly, the defense put on a strong defense. [00:15:17] Speaker 01: They pursued other pretrial motions, including most notably a successful motion to exclude the gun and exclude any evidence of the threats made in Reno, along with motions for true threats, dismissal, and an overall sort of David and Goliath-type defense that this was a woman whose mother was unjustly fired and who was fighting against [00:15:42] Speaker 01: you know, defense attorneys from a powerful firm. [00:15:45] Speaker 01: Defense counsel clearly had a strategy here and made the best of what she could with the facts that she did. [00:15:50] Speaker 01: The fact that this one motion with a very low likelihood of success at best was not the strategy she chose, was not the type of error that was so serious that she was essentially not functioning as the lawyer guaranteed by the Sixth Amendment. [00:16:05] Speaker 03: If you didn't have the evidence from the cell phone, what else would you have had here to move forward with the case? [00:16:13] Speaker 01: There was strong circumstantial evidence with or without the phones that this Miss Smith was the person making these threats. [00:16:20] Speaker 01: You had initially the Facebook threats mentioning her mother, followed by the hard copy threats to the first victim, additional hard copy threats made to multiple lawyers involved in the litigation. [00:16:33] Speaker 01: Then Miss Smith was also filing similarly worded filings in the lawsuit. [00:16:41] Speaker 01: threatened one of the attorneys outside of the courtroom and then followed up with additional hard copy letters, all of which matched each other and had similar language. [00:16:51] Speaker 01: So there's a strong circumstantial case with or without what was found on her phone that she was the one responsible for the threats, which [00:16:59] Speaker 01: Again, it's another reason why when defense counsel is evaluating what their best strategy for the defense here is, focusing sort of their limited credibility with the court and their limited resources on a motion to suppress just the phone is not outside the realm of reasonable representation. [00:17:22] Speaker 01: Happy to answer any other questions. [00:17:24] Speaker 01: We'd ask that you affirm the district court. [00:17:27] Speaker 03: OK, thank you. [00:17:37] Speaker 04: I just have a few points to make on rebuttal, Your Honors. [00:17:41] Speaker 04: First of all, Inspector Steele did not contemplate cell phones when he drafted the October affidavit and warrant. [00:17:50] Speaker 04: And this court should not fill cell phones in using the government's post-hoc rationalizations as how to fit a proverbial square peg into a round hole. [00:18:00] Speaker 02: Counsel, may I ask you, since you don't have a lot of time, [00:18:03] Speaker 02: I ask your opposing counsel whether he was aware of any case, published case that deals with the facts of this case or substantially similar ones where IAC was found. [00:18:16] Speaker 02: Can you give us any such case? [00:18:18] Speaker 04: I can, Your Honor. [00:18:19] Speaker 04: There aren't many cases on point, but there's one case out of the district. [00:18:23] Speaker 04: It's a district court case. [00:18:25] Speaker 04: And it has almost identical facts to the facts of this case. [00:18:30] Speaker 02: And which district court is this, please? [00:18:31] Speaker 04: It's in Kansas, and the case is called Ramirez. [00:18:36] Speaker 04: And the site is number CR 1210089, District of Kansas. [00:18:42] Speaker 04: And it's actually decided before Riley. [00:18:45] Speaker 04: In that case, there were two warrants. [00:18:49] Speaker 04: One said the first one did not say cell phones, and the second one did. [00:18:54] Speaker 04: And the district court concluded that as a matter of law, the first warrant did not authorize the officer to search the contents of the cell phone because there was no record to explain why the first affidavit and warrant did not mention cell phones. [00:19:12] Speaker 02: I take your point. [00:19:13] Speaker 02: Obviously, we're not bound by that court. [00:19:14] Speaker 02: But it sounds like the court was ruling on a motion as opposed to an IAC claim. [00:19:21] Speaker 02: And what I'm looking for, is there a case [00:19:24] Speaker 02: where the first prong of Strickland was satisfied, according to a court of record, similar to the situation here. [00:19:34] Speaker 04: Your Honor, there is no case exactly on point. [00:19:37] Speaker 04: This is where I would point to other Ninth Circuit cases addressing scopes, such as Sagadee and look at that in conjunction with Riley to arrive at the fact that no reasonable attorney would have failed to file this motion to suppress. [00:19:55] Speaker 04: And my very quick last point is in response to opposing counsel, a warrant should leave nothing to the discretion of the executing officers. [00:20:05] Speaker 04: That's part of the protective purpose of the fourth amendment. [00:20:13] Speaker 04: And that's what matters. [00:20:15] Speaker 04: And, oh, I have a bit of time. [00:20:18] Speaker 04: And I'd like to address the good faith argument that brought up by opposing counsel. [00:20:22] Speaker 03: You're into sort of borrowed time now, but why don't you go ahead and address that and then wrap up. [00:20:27] Speaker 04: Okay, sure. [00:20:28] Speaker 04: I'll just say one point about good faith. [00:20:30] Speaker 04: Good faith is about the officer's objectively reasonable reliance on an invalid warrant, but in this case, an objectively reasonable reading of the October warrant does not include cell phones. [00:20:41] Speaker 04: And I will conclude my argument with that. [00:20:43] Speaker 03: Thank you so much. [00:20:44] Speaker 03: And we thank both counsel for the briefing and argument. [00:20:47] Speaker 03: This case is submitted.