[00:00:00] Speaker 00:
Case number 23, 3054, United States of America versus Lingwood Douglas Thorne at balance.

[00:00:07] Speaker 00:
Mr. Cohn, pretty balanced, Mr. Han, pretty able.

[00:00:12] Speaker 00:
Mr. Cohn.

[00:00:16] Speaker 02:
Thank you, Judge.

[00:00:18] Speaker 02:
In United States versus Glover,

[00:00:23] Speaker 02:
This court held that an application for a search warrant in the District of Columbia that expressly stated that it was seeking authority to search outside the district, in that case, it mentioned both Maryland and Virginia, was not valid because the District of Columbia magistrate judge only has jurisdiction

[00:00:54] Speaker 02:
to issue, to authorize searches in the District of Columbia.

[00:01:03] Speaker 02:
The lesson of Glover is definitely not what law enforcement did here, which is to file an application for a search warrant in which it didn't even mention any other state.

[00:01:16] Speaker 02:
It didn't even mention that it was going to search

[00:01:21] Speaker 02:
a outside the District of Columbia.

[00:01:25] Speaker 02:
And what makes this even worse is that this isn't just an ordinary search.

[00:01:31] Speaker 02:
This was the installation of a cell site simulator, the device that collects the data of people making cell phone calls and in some case disrupts their telephone calls.

[00:01:45] Speaker 00:
So, Mr. Cohen, I take it that your position is that

[00:01:51] Speaker 00:
There needs to be a finding implicit or explicit by the magistrate judge that there's probable cause to believe that at the time of issuance, the phone is in the District of Columbia.

[00:02:06] Speaker 00:
Is that your position?

[00:02:07] Speaker 00:
It's a probable cause standard.

[00:02:09] Speaker 02:
Uh, if I understand your question to be the standard that the judge should be applying.

[00:02:14] Speaker 02:
No, that's not the heart of my argument.

[00:02:17] Speaker 02:
The heart of my argument is that the judge, the magistrate judge has to be given facts upon which he can understand.

[00:02:25] Speaker 00:
And the, and the facts that she's given have to match a probable cause that the phone is in the district.

[00:02:30] Speaker 02:
Well, on the reply brief, I think.

[00:02:33] Speaker 02:
Yes, but it's important to note that for our purposes today, even under the reason to believe standard that the district judge applied here, there was no reason for the magistrate judge to believe that she was authorizing a search outside the District of Columbia.

[00:02:50] Speaker 02:
The very first sentence says I'm authorizing a search in the District of Columbia.

[00:02:55] Speaker 00:
Yes, Mr. Cohen, I understand that.

[00:02:56] Speaker 00:
And I want to hear that argument as well.

[00:02:58] Speaker 00:
But one of the premises

[00:03:02] Speaker 00:
is what is the standard by which the magistrate needs to make that finding?

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And of course, in addition, there have to be facts in the affidavit to support that, et cetera.

[00:03:12] Speaker 00:
But I'm just trying to understand your position as to what is the standard by which the magistrate judge

[00:03:19] Speaker 00:
must determine that the phone at issue is in the District of Columbia.

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Is it probable cause?

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Is it reasonable suspicion in the court below?

[00:03:27] Speaker 00:
I believe the position was there has to be absolute knowledge.

[00:03:31] Speaker 00:
My reading of your reply brief is that you now believe it's a probable cause standard.

[00:03:36] Speaker 00:
And I think that this is important in understanding your further arguments, but this is like a foundational question.

[00:03:45] Speaker 02:
Judge, as respectfully as I can be, in this particular case, it's not a foundational question.

[00:03:50] Speaker 02:
Because under any standard, the affidavit was so lacking that whatever.

[00:03:55] Speaker 00:
The reason I ask you this, though, is because probable cause is not a particularly high standard.

[00:04:01] Speaker 00:
And it seems to me that the district court might have been confused about the probable cause standard.

[00:04:08] Speaker 00:
Because she seemed to think that there couldn't be a probable cause that this phone is both in the district

[00:04:14] Speaker 00:
and in Maryland, because probable cause is less than 50%.

[00:04:17] Speaker 00:
We know that.

[00:04:19] Speaker 00:
And you can have probable cause, fair probability that the phone could be in the district, fair probability that it's in Maryland.

[00:04:26] Speaker 00:
It just seems to be that it's not that high of a standard.

[00:04:29] Speaker 00:
And there was information provided in the affidavit that the defendant has a home on Foot Street in the District of Columbia.

[00:04:39] Speaker 00:
It's a 202 area code.

[00:04:41] Speaker 00:
There was a search warrant executed there where

[00:04:45] Speaker 00:
It was confirmed that he lives there by his girlfriend, et cetera.

[00:04:49] Speaker 00:
So I don't see why that's not probable cause.

[00:04:52] Speaker 02:
I think I understand better your question, which is, let's say that there was probable cause in the affidavit.

[00:05:01] Speaker 02:
that the defendant was and his property, which government wanted to search, was in the District of Columbia.

[00:05:11] Speaker 02:
So the problem is, and it's a problem that happened in Glover and that happened in Kruger, is that when the law enforcement seeks to search not in the District of Columbia, the fact that they may have established probable cause that the defendant is in the District of Columbia doesn't

[00:05:30] Speaker 02:
authorize a search outside the District of Columbia.

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And that's why the rule 41B does.

[00:05:38] Speaker 03:
This all turns on whether it's a B1 or a B2 warrant, right?

[00:05:41] Speaker 03:
You wouldn't dispute that if this was issued under B2, then the question would be, was there some basis reasonable to believe whatever the standard, was the phone in DC at the time the warrant was issued?

[00:05:56] Speaker 03:
And if it was, obviously the phone could move.

[00:05:59] Speaker 03:
So if they learned that a week later it's in Maryland, this could have been a permissible application of a B2 warrant, right?

[00:06:06] Speaker 03:
Your argument hinges on it being a B1 warrant.

[00:06:09] Speaker 02:
no your honor and I disagree with the obviously the phone could move that's something that needs to be in an affidavit if you want a magistrate judge this is a very serious device here if a magistrate judge is going to authorize the use law enforcement of this cell site simulator disrupting privacy of countless citizens

[00:06:31] Speaker 02:
That, it's not obvious if I sign off and say, oh, yeah, he might be in the District of Columbia, or there's probable cause.

[00:06:38] Speaker 02:
That doesn't authorize a B2 search in outside the district.

[00:06:43] Speaker 02:
The B2 is very clear.

[00:06:45] Speaker 03:
So my question was, if this was a B2 warrant,

[00:06:49] Speaker 03:
then this scenario would be permissible, correct?

[00:06:55] Speaker 03:
If it was properly issued as a B2 warrant, it would authorize a search outside the district, including Maryland.

[00:07:02] Speaker 02:
And if, to bring Judge Pan into the discussion here, if the application had said

[00:07:09] Speaker 02:
we have probable cause to believe this cell phone has moved from the District of Columbia to Maryland, if that's the standard.

[00:07:21] Speaker 02:
But there's nothing in the affidavit that gives the magistrate judge the information.

[00:07:28] Speaker 00:
I'm sorry, what you just said, are you asking for a standard where we would have to

[00:07:33] Speaker 00:
law enforcement have to put in the affidavit that they have probable cause that it could move?

[00:07:37] Speaker 02:
It's not in me.

[00:07:39] Speaker 02:
It's the rule that says, and it might move outside the district.

[00:07:44] Speaker 02:
It's not me, Judge Pan.

[00:07:45] Speaker 02:
It's the rule that says.

[00:07:46] Speaker 00:
To issue a warrant.

[00:07:47] Speaker 00:
OK, so it says, imagine a judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed.

[00:08:02] Speaker 00:
So you're putting emphasis on the might move or be moved.

[00:08:08] Speaker 00:
But I thought that the focus of this appeal was whether it was located within the district when the warrant is issued.

[00:08:15] Speaker 02:
No, Judge.

[00:08:15] Speaker 02:
And I'm sorry.

[00:08:16] Speaker 02:
And by the way, I'm putting emphasis not just on might move, but on the word if, which creates a condition.

[00:08:23] Speaker 00:
If isn't in the?

[00:08:25] Speaker 02:
Yeah, it is, Judge.

[00:08:26] Speaker 02:
The word if.

[00:08:26] Speaker 02:
You just read it.

[00:08:28] Speaker 00:
Where?

[00:08:29] Speaker 00:
I'm looking at the language right now.

[00:08:31] Speaker 00:
is located within the district when the warrant is issued, but might move or be moved outside the district before the warrant is executed.

[00:08:38] Speaker 00:
Might move or be moved seems like a very low standard.

[00:08:41] Speaker 00:
I thought that we were focusing on whether the person or property is located within the district when the warrant is issued and what the standard is for that.

[00:08:55] Speaker 02:
I'm looking at the rule.

[00:08:56] Speaker 02:
An magistrate judge with authority in the district has authority to issue a warrant for a person of property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved.

[00:09:11] Speaker 00:
In other words... But if goes to whether the person of property is located within the district, which is what I thought this appeal was about.

[00:09:17] Speaker 02:
No, Judge.

[00:09:18] Speaker 02:
This appeal is about the failure of the application to invoke

[00:09:25] Speaker 02:
B2 and to alert the magistrate judge to say, judge, you're not just looking at whether this... The war affidavit did invoke B2.

[00:09:34] Speaker 02:
No, it did not, judge.

[00:09:36] Speaker 02:
I understand the government makes a claim based on one sentence, but to invoke B2, just to repeat your words,

[00:09:43] Speaker 02:
One has to say, and this property might move or has moved outside the district.

[00:09:50] Speaker 02:
There's nothing in the affidavit about that.

[00:09:53] Speaker 02:
There's one passing sentence that says, oh, yeah, and by the way, we have authority under B2.

[00:09:59] Speaker 02:
But that's not enough.

[00:10:00] Speaker 02:
The magistrate has to authorize a search outside the district.

[00:10:05] Speaker 02:
If this rule doesn't.

[00:10:06] Speaker 01:
So you haven't framed it this way, but I took a lot of concerns to stem from Supreme Court precedent about the particularity of the place to be searched.

[00:10:23] Speaker 01:
That's not the way the circuits have addressed this question that you raise and.

[00:10:32] Speaker 01:
And.

[00:10:34] Speaker 01:
Your brief doesn't invoke that line of authority.

[00:10:39] Speaker 01:
But I understand your concern to be very much along the lines of what Justice Gorsuch has outlined in his concurring opinion.

[00:10:51] Speaker 01:
But the circuits have not adopted his approach.

[00:10:58] Speaker 01:
Judge.

[00:10:59] Speaker 01:
And fear.

[00:11:02] Speaker 01:
As Judge Pan's questions imply, this case is focused on the first part of the obligation of the magistrate judge as to whether the defendant was in the District of Columbia at the time.

[00:11:19] Speaker 02:
Is that correct?

[00:11:23] Speaker 02:
The reason I began with this court's Glover case is the concern in Glover finding precedent is with jurisdiction.

[00:11:34] Speaker 02:
That's what the application has to tell the magistrate judge.

[00:11:41] Speaker 02:
We are invoking your jurisdiction

[00:11:44] Speaker 02:
to authorize a search outside the District of Columbia, which is, by the way, probably highly unusual, particularly with this kind of device.

[00:11:54] Speaker 01:
So it's not enough if the government does refer to rule 41 and at some point refers to B2?

[00:12:05] Speaker 02:
That's right, Judge.

[00:12:07] Speaker 02:
It's not enough.

[00:12:08] Speaker 02:
An affidavit has to give facts.

[00:12:10] Speaker 02:
Authority for that.

[00:12:12] Speaker 02:
the opinion that's going to come down in this case.

[00:12:15] Speaker 01:
Well, that's my point.

[00:12:16] Speaker 01:
This is a question of first impression.

[00:12:18] Speaker 01:
Judge, I'm just... We are looking for some guidance here.

[00:12:23] Speaker 02:
Well, the guidance is the rule I read to you.

[00:12:26] Speaker 02:
If the person or property is located within the district when the warrant is issued, but might move or be moved outside the district before the warrant is executed.

[00:12:36] Speaker 02:
That's the language from the rules.

[00:12:37] Speaker 02:
That's what

[00:12:38] Speaker 02:
law enforcement has to respect.

[00:12:41] Speaker 02:
And by the way, the language I just read, might move, is not, as I said earlier, in the affidavit.

[00:12:47] Speaker 03:
So can I just try to make sure I understand the argument?

[00:12:49] Speaker 03:
So you're saying, which makes a lot of sense, when you read the rule, there's two requirements.

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Was in the district and might move.

[00:12:58] Speaker 03:
And I think underlying some of these questions is that in the briefing,

[00:13:05] Speaker 03:
It seems really some of us read you to be focused on one, and we didn't see an argument that the application needed facts, but did not include them on the second requirement.

[00:13:18] Speaker 03:
So I think in your rebuttal,

[00:13:20] Speaker 03:
It would be helpful if you could point us to where in your opening brief you made this argument, because you absolutely made the argument that there's not enough facts that the phone was in D.C., the contacts from counsel came from Baltimore, but I don't think there was an argument that the application needed to say a cell phone might move.

[00:13:40] Speaker 03:
Judge, the argument is in the brief.

[00:13:43] Speaker 03:
And it would be very helpful if you showed us where.

[00:13:45] Speaker 03:
Right now?

[00:13:46] Speaker 03:
In rebuttal.

[00:13:46] Speaker 03:
That's just why I'm flagging.

[00:13:48] Speaker 03:
Oh, in rebuttal.

[00:13:49] Speaker 00:
Okay, thank you.

[00:13:50] Speaker 00:
One last thing.

[00:13:50] Speaker 00:
Why doesn't the good faith exception sort of resolve this whole case?

[00:13:58] Speaker 02:
address that point, OK?

[00:14:00] Speaker 02:
And I tried to make that point in the very first sentences of this argument.

[00:14:06] Speaker 02:
Glover did not apply the good faith exception, said it did not apply.

[00:14:11] Speaker 02:
We're dealing, the comparison I like to make here is, let's imagine a prosecutor walks into a federal court, and it turns out there's a geographical jurisdiction fatal flaw

[00:14:24] Speaker 02:
And the judge says, I'm really sorry, Mr. Prosecutor, but I'm going to dismiss your indictment here because there's a jurisdictional, geographic jurisdictional flaw.

[00:14:34] Speaker 02:
And the prosecutor said, well, I, in good faith, believe that actually you had jurisdiction.

[00:14:39] Speaker 02:
The judge would politely tell the prosecutors, I'm really sorry.

[00:14:42] Speaker 02:
I like your good faith.

[00:14:43] Speaker 02:
But that's irrelevant to a jurisdiction.

[00:14:45] Speaker 00:
That's not how the good faith exception works, does it?

[00:14:48] Speaker 00:
The good faith exception allows law enforcement to rely on a warrant that's issued by a judge.

[00:14:53] Speaker 02:
Right, but the judge here, just to be clear, then to answer your question, let's say it does apply.

[00:14:57] Speaker 02:
I think it's odd to apply it in jurisdictional situations because there's no jurisdiction.

[00:15:01] Speaker 00:
It's what, but let's say that good faith about Magruder, didn't we apply that in a jurisdictional situation?

[00:15:06] Speaker 02:
Different case, different side, didn't even mention Glover, but okay.

[00:15:09] Speaker 00:
But it's jurisdictional and.

[00:15:11] Speaker 02:
I understand.

[00:15:13] Speaker 02:
Judge, but lover remains good law.

[00:15:15] Speaker 02:
But let's say that we want to look at the good faith here.

[00:15:18] Speaker 02:
Where in the affidavit does law enforcement tell the judge, we're going searching outside the district?

[00:15:28] Speaker 02:
Where does the magistrate judge say, I'm going to authorize a search outside the district?

[00:15:34] Speaker 02:
Nowhere.

[00:15:34] Speaker 02:
There's no facts about Maryland or anything like that or any other state.

[00:15:38] Speaker 00:
Under the good faith exception, if something's missing from the affidavit,

[00:15:43] Speaker 00:
It's taken outside of the good faith exception only if law enforcement exhibits deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights.

[00:15:51] Speaker 02:
Or it's facially deficient, which, by the way, is the point that's made in the brief.

[00:15:56] Speaker 02:
And here, it is blatantly deficient.

[00:16:00] Speaker 00:
I understand your argument.

[00:16:01] Speaker 00:
Do you have any questions?

[00:16:04] Speaker 00:
No, thanks.

[00:16:05] Speaker 00:
Thank you.

[00:16:05] Speaker 00:
We'll give you two minutes for rebuttal.

[00:16:07] Speaker 05:
Thank you.

[00:16:18] Speaker 04:
a little shorter.

[00:16:22] Speaker 00:
Please proceed when you're ready.

[00:16:23] Speaker 04:
Thank you, Your Honor.

[00:16:25] Speaker 04:
And good morning.

[00:16:25] Speaker 04:
May it please the court, Brian Hahn for Pelley of the United States.

[00:16:29] Speaker 04:
The district court in this case did not properly denied Thorn's motion to suppress for two reasons.

[00:16:36] Speaker 04:
First, because there was venue for the warrant in the District of Columbia.

[00:16:41] Speaker 04:
And second, because even if there was not, law enforcement relied on the warrant issuance in good faith when executing the search.

[00:16:49] Speaker 04:
As to the first issue, I think in terms of whether or not there was a venue in the District of Columbia, I think, Judge Pan, you've said in the Warren affidavit, there was information that Thorn lived at in the district.

[00:17:05] Speaker 04:
And he had a 202 or his new phone number had a 202 area code.

[00:17:10] Speaker 04:
And when law enforcement officers went and executed a warrant at that location, his girlfriend confirmed that he had lived there.

[00:17:18] Speaker 04:
So I think there's certainly reason to believe that.

[00:17:21] Speaker 00:
What do you think is the right standard?

[00:17:23] Speaker 00:
Do you think it's reason to believe that the phone is in the district at the time of issuance or probable cause?

[00:17:27] Speaker 00:
I see that in your brief, you kind of hedged your bets.

[00:17:30] Speaker 04:
So I think that the correct standard is reason to believe.

[00:17:35] Speaker 04:
I think that's for a couple of reasons.

[00:17:37] Speaker 04:
First of all, because the standard is obviously not absolute knowledge.

[00:17:42] Speaker 04:
If that were the case, Rule 41 would violate, since probable cause is what's needed for a warrant, if you needed absolute knowledge, something was there, then you- But it was suggested that probable cause didn't have that highest standards.

[00:17:56] Speaker 04:
That's fair.

[00:17:57] Speaker 04:
And probable cause does not have that highest standard.

[00:18:00] Speaker 04:
I think that the government does.

[00:18:02] Speaker 04:
Absolute knowledge.

[00:18:03] Speaker 04:
Correct.

[00:18:03] Speaker 04:
Correct.

[00:18:04] Speaker 04:
That probable cause is not that highest standard.

[00:18:07] Speaker 04:
But I think there's a couple of instances in the case law in the Fourth Amendment jurisprudence that suggest that when you're looking for a person or evidence related to an arrest.

[00:18:18] Speaker 04:
So here, there's an arrest warrant.

[00:18:20] Speaker 04:
And the search warrant is looking for information to locate the person to arrest them.

[00:18:26] Speaker 04:
that a reason to believe standard applies there.

[00:18:29] Speaker 04:
So one of those instances, of course, is Peyton, where if you have an arrest warrant for a person, you can go into their home without an additional warrant.

[00:18:37] Speaker 00:
But that might not be always the reason you want to get this information.

[00:18:42] Speaker 00:
It shouldn't be a standard that turns on

[00:18:46] Speaker 00:
what you just said, because you might want to get this phone for evidentiary purposes.

[00:18:51] Speaker 00:
Maybe the phone's not on the suspect.

[00:18:54] Speaker 00:
I mean, it has to be a more general standard than that under Rule 41B.

[00:18:59] Speaker 00:
And it seems to me that probable cause is

[00:19:02] Speaker 00:
the standard that is commonly used in achieving or seeking warrants.

[00:19:07] Speaker 00:
And reasonable suspicion kind of comes out of nowhere.

[00:19:10] Speaker 00:
It's also not really clear to me why reason to believe is necessary because probable cause is not as high a standard as the district court seemed to think it was.

[00:19:19] Speaker 00:
It seemed to be important to her analysis that she didn't think that you could have probable cause believe the phone was both

[00:19:28] Speaker 00:
in the district and in Maryland.

[00:19:30] Speaker 00:
But in my view, that's probable cause accommodates that type of analysis because it's clearly less than 50%.

[00:19:37] Speaker 00:
And if you've got a fair probability, it's in DC because his house is here and he's got a 202 number.

[00:19:43] Speaker 00:
And you can also have a fair probability to believe that's in Maryland because he's got an auto shop there and he's got a 301 number.

[00:19:50] Speaker 00:
I don't think that's preclusive.

[00:19:52] Speaker 00:
It seems like probable cause doesn't have the practical problems.

[00:19:55] Speaker 00:
that the district court thought it would have.

[00:19:59] Speaker 00:
To me, the choice should be between preponderance, since it's a jurisdictional fact, which usually you have to prove by preponderance, or probable cause, which is the warrant standard.

[00:20:10] Speaker 00:
But preponderance might have the practical problems that the district court identified, which is

[00:20:16] Speaker 00:
You want this information so you can find where this person is.

[00:20:19] Speaker 00:
If we had preponderance, we wouldn't need the cell site simulator.

[00:20:24] Speaker 00:
So it just seems to me that the choices should be between preponderance and probable cause.

[00:20:29] Speaker 00:
And probable cause seems to be the one that avoids absurd results and is consistent with the general warrant landscape.

[00:20:40] Speaker 04:
So I think I agree with you that probable cause doesn't have all of the problems that the district court judge believed it did.

[00:20:47] Speaker 04:
I think that the analysis of probable cause in this case was incorrect, as you said.

[00:20:52] Speaker 04:
I do think that probable reason to believe has been used to authorize a search for evidence when somebody is conducting, when law enforcement is conducting a Gantt search, for example, when you're arresting

[00:21:06] Speaker 04:
a Gantt search.

[00:21:08] Speaker 04:
So when someone is, of course, when someone is arrested and you can search their car if they have been driving one for evidence of the crime that they're being arrested for, if there is reasonable articulable suspicion that you might find- Can you call that what?

[00:21:26] Speaker 04:
A G-A-N-T?

[00:21:27] Speaker 04:
G-A-N-T-S, from Arizona.

[00:21:28] Speaker 01:
Let me ask you.

[00:21:30] Speaker 01:
to give me some guidance here as to what the department's position is.

[00:21:36] Speaker 01:
It's a question of first impression.

[00:21:39] Speaker 01:
And at least one of the affidavits in the case from the law enforcement said he didn't even think we needed a warrant.

[00:21:48] Speaker 01:
They had evidence that this man had a lot of drugs at Foot Street.

[00:21:57] Speaker 01:
They got an arrest warrant.

[00:22:00] Speaker 01:
So why, tell me when the department is taking the position this 41B2 warrant is required.

[00:22:16] Speaker 04:
I don't, I don't think I know the answer to that question, your honor.

[00:22:19] Speaker 04:
I'm not sure.

[00:22:20] Speaker 01:
All right.

[00:22:23] Speaker 01:
And that's of concern to me here, trying to understand where we are because you sign a lot of cases from around the circuits, but you know, you can read them and say, well, it's factually distinguishable, procedurally distinguishable.

[00:22:41] Speaker 01:
And I'm trying to understand in this area where,

[00:22:48] Speaker 01:
Once you get this cell site simulator warrant, the way you are defending it in this case gives carte blanche to law enforcement.

[00:23:02] Speaker 01:
No matter where the phone is, if you start hearing pings in Wyoming, you can ask the provider to give you more information.

[00:23:18] Speaker 01:
So I need to understand what the department's position is on that question to the extent we have to decide in this case, because going to good faith says to me, well, there wasn't a Supreme Court decision saying you can't do this.

[00:23:39] Speaker 01:
And there wasn't a statute saying you can't do this or a rule saying you can't do this.

[00:23:47] Speaker 01:
So don't we end up with saying, well, this officer has a good record in the department or in the FBI or whatever, other law enforcement agencies involved.

[00:23:59] Speaker 01:
And, you know, it was an open question.

[00:24:03] Speaker 01:
So we're just going to use this simulator and take B2

[00:24:13] Speaker 01:
you know, as far as it will take us.

[00:24:16] Speaker 01:
I'm just not clear where the department is.

[00:24:19] Speaker 01:
And your brief says, well, you know, even if we made all kinds of errors, harmless error, that's where you end up, which is where I started, that you knew this man and you had witnesses that he was the one who possessed an enormous amount of illegal drugs.

[00:24:43] Speaker 04:
Well, I think under the plain terms of 41B2, when venue has to be established that the person or property to be seized is in the district at the time the warrant is issued, and that if it might move outside the district, then the warrant also authorizes seizure of that

[00:25:08] Speaker 04:
item or person outside the district.

[00:25:11] Speaker 04:
And in this case, I think it's a vagary of how this kind of search works.

[00:25:16] Speaker 04:
Because the search and the thing to be seized here is not even the phone itself.

[00:25:22] Speaker 04:
We're searching the phone for information from the phone that tells us where the phone's location is.

[00:25:29] Speaker 04:
And so I do think, in fact, that 41B2 authorizes a search for that phone

[00:25:36] Speaker 04:
anywhere if we get information that it is in another district because phones are readily moved, and especially in this case where Thorne was a fugitive and was avoiding arrest by law enforcement.

[00:25:48] Speaker 01:
Well, you say he's a fugitive.

[00:25:50] Speaker 01:
I mean, he's a fugitive in the sense that there's a sealed arrest warrant out for him, but he's

[00:25:58] Speaker 01:
Any citizen is given to know that you can't possess unlawful drugs.

[00:26:05] Speaker 01:
All right.

[00:26:05] Speaker 01:
Sure.

[00:26:05] Speaker 01:
I'm just wondering what the limits are here.

[00:26:09] Speaker 01:
And I don't see any.

[00:26:11] Speaker 01:
Because your brief just says harmless error.

[00:26:15] Speaker 04:
So I think harmless error is sort of a separate issue here, I think.

[00:26:19] Speaker 01:
No, no, no.

[00:26:19] Speaker 01:
You go issue by issue by issue by issue.

[00:26:24] Speaker 01:
And you say, but you know, even if law enforcement is wrong,

[00:26:29] Speaker 01:
I'm a Sarah.

[00:26:31] Speaker 04:
Let me think about this way.

[00:26:33] Speaker 04:
I think you mentioned the particularity requirement when engaging with my fellow council here.

[00:26:40] Speaker 04:
And I think that that is actually one of the limits on execution of warrants outside districts.

[00:26:46] Speaker 01:
Well, but I'm thinking of those particularity cases in terms of, you know, the warrant says we're going to search 422 and they get to 422 and it's an alley.

[00:26:57] Speaker 01:
And so they go to 424 and they search.

[00:27:01] Speaker 01:
You know, good faith.

[00:27:04] Speaker 01:
You know, they had a warrant, obviously not for the alley.

[00:27:08] Speaker 01:
It's for the house, sort of.

[00:27:09] Speaker 01:
It's a very different situation.

[00:27:12] Speaker 01:
And the district court says, you know, at least the way she's reading the rule, it didn't contemplate this type of investigatory activity.

[00:27:27] Speaker 01:
In other words, as I understand it, the law enforcement could have posted a number of people outside of the Foote Street address and also outside of the Baltimore address.

[00:27:41] Speaker 01:
But that's very manpower intensive.

[00:27:45] Speaker 01:
Now you can just use his cell phone and you can find out where he is, where he's doing his drug sales, et cetera.

[00:27:53] Speaker 01:
So that's why, in my thinking, I thought, well, if that's all that's left of the Fourth Amendment, then do we want to be careful, very careful, at the initial authorization?

[00:28:10] Speaker 01:
Because we have here an officer who says he doesn't even think we need a warrant.

[00:28:16] Speaker 04:
to, I don't know why.

[00:28:18] Speaker 01:
Just adult questions, I know.

[00:28:20] Speaker 01:
But I hope you came with the idea that we were probably going to ask this since it was a question of first impression.

[00:28:27] Speaker 04:
It's fair enough, Your Honor.

[00:28:29] Speaker 04:
And I think that in terms of whether or not there's something left for the Fourth Amendment after this, certainly there is.

[00:28:37] Speaker 04:
Certainly in a case like Kruger, for example, that we cite from the 10th Circuit and that appellant cites, that's where there's a violation of the venue provision, but not of the Fourth Amendment particularity requirement.

[00:28:50] Speaker 04:
Because the warrant there describes particularly the place to be searched and the things to be seized.

[00:28:57] Speaker 01:
that what was presented to the magistrate, the magistrate would have to stop and flip through and read all these attachments before she ever would see a reference to B2.

[00:29:15] Speaker 01:
I agree with that, Your Honor, and I think that magistrate judges do in fact, or at least should, if they're not just rubber stamping them, review all the attachments the affidavit for public... Well, maybe the affidavit should be more precise and help the magistrate who's busy and has a docket and can't look in the weeds when this is a critical part of the government's request.

[00:29:41] Speaker 04:
I think I agree that the warrant affidavit in this case could have been better.

[00:29:45] Speaker 04:
I think that- Would you recommend that?

[00:29:49] Speaker 01:
Your law enforcement associates?

[00:29:51] Speaker 04:
I certainly would.

[00:29:53] Speaker 04:
But I think if the question is what is required under 41B2, what is required under the Fourth Amendment, and then beyond that, even if it wasn't sufficient, whether or not they could rely on the Magistrate Judge's issuance of the warrant in good faith.

[00:30:06] Speaker 04:
Those are sort of different questions.

[00:30:08] Speaker 04:
And I think that in this case, both there was venue in the district and that the law enforcement could rely on the warrant in good faith.

[00:30:17] Speaker 03:
So counsel, I have a few questions.

[00:30:19] Speaker 03:
And the first one is factual.

[00:30:21] Speaker 03:
So when you've described the facts, you described facts showing that a basis to believe that the phone was in DC when the warrant was issued.

[00:30:29] Speaker 03:
Counsel today is arguing that the application also needed to have but didn't facts

[00:30:34] Speaker 03:
establishing that the property might move outside of the district, which is a requirement of the rule.

[00:30:40] Speaker 03:
And I just want to give you a chance to directly answer that.

[00:30:43] Speaker 03:
Appreciate that, Your Honor.

[00:30:44] Speaker 04:
I think two things.

[00:30:45] Speaker 04:
First, that the rule says that the property might move outside the District of Columbia.

[00:30:50] Speaker 04:
And I think that because it is a cell phone, because it is a movable piece of property, and the fact that in Riley versus California, the Supreme Court says,

[00:31:01] Speaker 04:
cell phones nowadays, people carry them with them everywhere.

[00:31:05] Speaker 04:
And that's one of the reasons why we need a warrant.

[00:31:07] Speaker 03:
So you think it's so self-evident that a mobile phone can move that it doesn't need to be in the application?

[00:31:13] Speaker 03:
Wouldn't there still be good reasons to make law enforcement say that, so we'd have some confidence that the magistrate is actually making that finding?

[00:31:22] Speaker 04:
I think that because the rule says might, and I think Judge Pan referenced this, might's a very low standard.

[00:31:28] Speaker 04:
If something might move outside the district in between the time the warrant is executed and the warrant is issued.

[00:31:35] Speaker 04:
And so I think that just sort of the background knowledge that cell phones can move satisfies that might standard.

[00:31:42] Speaker 03:
I understand that response.

[00:31:43] Speaker 03:
So the next question has to do with the standard.

[00:31:46] Speaker 03:
One oddity of using things like Gantt or the cases about reasonable suspicion to believe someone's in the house so you can enter with an arrest warrant is that this is a venue or a jurisdictional requirement and it just at first blush seems odd to think that you would have a reason to believe or probable cause.

[00:32:07] Speaker 03:
standard for a jurisdictional or venue requirement.

[00:32:12] Speaker 03:
It would be far more natural to think it is a preponderance standard.

[00:32:15] Speaker 03:
That's kind of how we typically answer those kinds of questions.

[00:32:18] Speaker 03:
So, I guess one specific question would be, can you think of another venue or jurisdictional requirement that is not done by preponderance of the evidence?

[00:32:29] Speaker 04:
That's a good question, Your Honor.

[00:32:31] Speaker 04:
I don't think I can off the top of my head.

[00:32:35] Speaker 03:
It's still possible the Fourth Amendment context is different, but I think one of your main arguments against a preponderance standard would be the kind of burden that Judge Pan was referring to.

[00:32:47] Speaker 03:
But how burdensome is that actually?

[00:32:49] Speaker 03:
So in this case,

[00:32:51] Speaker 03:
There were indications the phone was either in Maryland or in DC.

[00:32:56] Speaker 03:
So the burden would be to go and get two warrants.

[00:33:00] Speaker 03:
In practice, is that really an incredible burden?

[00:33:03] Speaker 04:
Uh, so I think two things, your honor, I don't know that it's an incredible burden, but I want to make two points about this.

[00:33:10] Speaker 04:
First is that if the phone is sort of an echo poise, 50% between DC and Maryland, then we, I think we couldn't get a warrant in either jurisdiction.

[00:33:19] Speaker 04:
And that's the practical problem that the district court judge was saying.

[00:33:23] Speaker 04:
But I think the second thing there is that it doesn't,

[00:33:26] Speaker 04:
you know even if it's not a reason to believe standard I think in the fourth amendment context it should be probable cause and that's because to issue a warrant what you need is probable cause as to the items to be searched to be seized and the places to be searched and so if we needed something more than probable cause that means that rule 41 would be setting a higher floor than the fourth amendment would because now we will need a preponderance of the evidence

[00:33:52] Speaker 04:
we need to, by a preponderance of the evidence, know the location to be searched, whereas all the Fourth Amendment requires is probable cause.

[00:34:00] Speaker 04:
And so I think that Rule 41 should be read harmoniously, like in that sense, with

[00:34:07] Speaker 04:
the rest of the Fourth Amendment jurisprudence.

[00:34:09] Speaker 04:
I think we've had arguments about why a reason to believe, we think, is an appropriate context.

[00:34:14] Speaker 04:
But the very least, it should be probable cause and not a preponderance or something higher than that.

[00:34:20] Speaker 00:
Do you have any precedents that import reason to believe into a warrant context?

[00:34:26] Speaker 00:
Sufficient in any kind of warrant?

[00:34:29] Speaker 04:
I don't.

[00:34:31] Speaker 04:
I don't think explicitly for the issuance of a warrant.

[00:34:34] Speaker 04:
I think the Fourth Amendment clearly says that the warrant should be issued on probable cause.

[00:34:39] Speaker 04:
But I think Rule 41 is not the Constitution, obviously.

[00:34:43] Speaker 04:
It is a venue provision.

[00:34:44] Speaker 00:
But if it's a jurisdictional fact, it should be by a preponderance of the evidence.

[00:34:47] Speaker 00:
That's the default for a jurisdictional fact.

[00:34:49] Speaker 04:
Fair enough, Your Honor.

[00:34:50] Speaker 00:
I just don't see where reasonable suspicion comes from or reason to believe comes from in this context.

[00:34:55] Speaker 04:
I think that's fair enough, Your Honor.

[00:34:57] Speaker 04:
I think that there are contexts where it exists.

[00:35:02] Speaker 04:
I don't have a case for you in specific where it's been applied to either the issuance of a warrant or a jurisdictional issue.

[00:35:09] Speaker 00:
But it seems to me that your position is as long as the phone

[00:35:15] Speaker 00:
is located in the district by whatever standard at the time of issuance, then automatically it can be.

[00:35:25] Speaker 00:
executed or the software similar can be executed outside of the district.

[00:35:30] Speaker 00:
But because you don't think that there needs to be any facts that state that it will be moved outside of the district.

[00:35:35] Speaker 00:
You're just saying if it's here, then phones are mobile.

[00:35:39] Speaker 00:
We don't have to add any additional facts.

[00:35:41] Speaker 00:
Any old time that it moves out of the district, that's OK.

[00:35:43] Speaker 04:
I think that's right, Your Honor, because of the reason that phones are very mobile.

[00:35:48] Speaker 04:
I do think that even if there was a requirement that the phone might move, I think that at the very least the affidavit includes information that the defendant was perhaps not strictly a fugitive in the sense that he had escaped custody, but was avoiding law enforcement and wasn't turning himself in.

[00:36:08] Speaker 04:
I think that that

[00:36:10] Speaker 04:
reasonably would allow the magistrate to conclude, or at least to infer, that he might be moving jurisdictions and his phone might be moving with him.

[00:36:19] Speaker 01:
Well, law enforcement clearly had information about his pattern of activity.

[00:36:27] Speaker 04:
Correct.

[00:36:28] Speaker 01:
But this was not shared.

[00:36:31] Speaker 01:
in the affidavit.

[00:36:32] Speaker 04:
And I would have advised him to put in the warrant affidavit.

[00:36:36] Speaker 04:
But again, I think the question here is not what is the best warrant affidavit that could have been written.

[00:36:41] Speaker 04:
It is what does the Fourth Amendment require?

[00:36:43] Speaker 04:
What does Rule 41B2 require?

[00:36:45] Speaker 01:
That's right.

[00:36:46] Speaker 01:
And so what you're saying, as I hear you, is

[00:36:50] Speaker 01:
If I have a cell phone with a 202 area code, and there's some information, I live in the District of Columbia, and I've designated it as my principal residence, you can get a cell site simulator and trace me around the world.

[00:37:10] Speaker 04:
I think, oh, I don't know about around the world.

[00:37:13] Speaker 01:
Well, let's say within the United States.

[00:37:15] Speaker 01:
OK?

[00:37:16] Speaker 01:
I'm just trying to understand.

[00:37:20] Speaker 01:
I was trying to think back to the founding.

[00:37:23] Speaker 01:
What would it be?

[00:37:25] Speaker 01:
You want my diary, where I've been, what I've been doing, and it's very comprehensive.

[00:37:32] Speaker 01:
And so what kind of burden does a government have in order to get my diary?

[00:37:40] Speaker 04:
So I think that because of the way the search takes place, because it's searching the phone and getting information from the phone, it's like the warrant is for the information in the diary.

[00:37:53] Speaker 04:
And so in order to go into your home or your business or something like that, we would need a warrant from that district to go into that place and get your diary.

[00:38:02] Speaker 04:
But let's say

[00:38:06] Speaker 04:
We have a warrant to obtain your diary.

[00:38:09] Speaker 04:
It is, we believe that is, we have probable cause that it's in the District of Columbia, but then a law enforcement agent fortuitously is walking around in Oregon and they see you holding your diary on the street.

[00:38:22] Speaker 04:
I think that at least in terms of the venue provision,

[00:38:28] Speaker 04:
the officer can seize your diary because there is a warrant where probable cause has been found that your diary is evidence of a crime.

[00:38:39] Speaker 04:
And we're not intruding on an additional private area that the Fourth Amendment protects, like a home or a business or some other lockbox or effect that you have.

[00:38:50] Speaker 04:
We are, in fact, particularly seizing, I think so long as the officer really knows both

[00:38:56] Speaker 04:
that the diary is the subject of a warrant, that it can be seized, and that it is, in fact, the diary that we're looking for, I think the law enforcement officer could, in fact, seize that.

[00:39:08] Speaker 04:
And keep in mind rule 41B2, I think the advisory committee notes talks about a situation where there is something on a train and we're trying to seize that thing on the train.

[00:39:19] Speaker 04:
And the whole point of 41B2 is so that law enforcement doesn't have to get warrants from every district the train might be traveling to and sort of time it properly so they can intercept it at the right time to get it from a district that they've obtained a warrant from.

[00:39:36] Speaker 04:
they can obtain the warrant in the district the train currently is in and sort of hit it when it stops.

[00:39:43] Speaker 04:
If it doesn't have a stop until the next jurisdiction, perhaps, then they can hit that train and take that object once the train stops there.

[00:39:52] Speaker 04:
And so that's sort of the practical reason why 41B2 was added to the rule and sort of dovetails with the 1990, I think,

[00:40:02] Speaker 04:
One of the advisory crinos, which says that what we're trying to do with 41 it will 41 is make it administratively easier for law enforcement to get warrants because we want to encourage them to get warrants as opposed to rely on some sort of exception.

[00:40:18] Speaker 04:
And so.

[00:40:20] Speaker 00:
So on the issue of the information about ties to Maryland, which are not included in the affidavit, it seems to me that those would only need to be included in the affidavit if they would negate the probable cause that the phone was in the district.

[00:40:38] Speaker 04:
I think that's right.

[00:40:40] Speaker 00:
In general, it would be relevant to whether or not the phone is in the district at the time of issuance or not, that there are also ties to Maryland.

[00:40:49] Speaker 00:
But I think you would only have to include it in the affidavit if it would negate the probable cause, because it seems to me that there could be probable cause that the phone is in DC, and there also could be probable cause that the phone is in Maryland.

[00:41:04] Speaker 00:
And if the Maryland information doesn't negate the problem cause for DC and you're just trying to seek this one in DC, it doesn't seem strictly necessary that you would include it.

[00:41:14] Speaker 00:
Maybe as a matter of best practices, you should, but I don't think it's it meets.

[00:41:20] Speaker 00:
It certainly doesn't meet the good faith standard that it would be reckless or grossly negligent not to include it or deliberately misleading.

[00:41:30] Speaker 00:
And it just seems to me that although it would be good to include that, it doesn't seem strictly necessary under Rule 41B or just general probable cause principles.

[00:41:41] Speaker 04:
I would agree with that, Your Honor.

[00:41:43] Speaker 04:
And I would also note there hasn't been a frank challenge on appeal in this case that, for some reason, the government didn't have probable cause or the affidavit didn't have probable cause or that there wasn't some sort of... So why shouldn't we just decide this case based on the good faith exception and just not get into all of these sticky issues about Rule 41B?

[00:42:07] Speaker 04:
Sorry, why should or shouldn't?

[00:42:09] Speaker 00:
Why shouldn't we just do this based on good faith exception?

[00:42:12] Speaker 04:
So I think that the court could decide this case on the good faith exception.

[00:42:18] Speaker 04:
I think that there are a lot of issues that we've talked about for now for 16 minutes for me.

[00:42:25] Speaker 04:
And I think that regardless of whether or not, like what the standard is strictly as to establishing

[00:42:35] Speaker 04:
whether or not the property's in the district.

[00:42:37] Speaker 04:
At least in this case, law enforcement invokes Rule 41B2 explicitly in the warrant.

[00:42:43] Speaker 04:
This is a warrant for a cell phone that's highly movable.

[00:42:47] Speaker 04:
There's information that the defendant might be avoiding law enforcement, so may move jurisdictions.

[00:42:52] Speaker 04:
In that instance, this warrant was not so facially deficient that the good faith exception shouldn't apply.

[00:42:59] Speaker 04:
I would note Appellant's citation to Glover.

[00:43:02] Speaker 04:
I think Glover is an apposite because Title III, which is what Glover is talking about, has an explicit textual remedy in the statute that says that no evidence obtained in violation of this chapter can be used as evidence.

[00:43:15] Speaker 04:
And that's not the case here.

[00:43:18] Speaker 04:
Rule 41 allows for people to file motions to suppress.

[00:43:21] Speaker 04:
doesn't explicitly say that evidence should be excluded.

[00:43:28] Speaker 04:
And so that sort of follows normal Fourth Amendment jurisprudence insofar as the good faith exception does apply.

[00:43:34] Speaker 01:
So could I push you back in?

[00:43:36] Speaker 01:
Apologies for more questions.

[00:43:43] Speaker 01:
As to burden on law enforcement, in this case,

[00:43:51] Speaker 01:
As I've mentioned twice before, one of the law enforcement officers didn't think he needed any warrant, period.

[00:44:04] Speaker 01:
Yet, I can find it for you if you want it.

[00:44:12] Speaker 01:
If in this case, the government went not only to a DC magistrate,

[00:44:19] Speaker 01:
but to a Maryland magistrate and obtain search warrants from both.

[00:44:30] Speaker 01:
That suggests to me that given the information law enforcement had, burden is not the type of, I don't want to say excuse, but explanation or not

[00:44:50] Speaker 01:
going to a Maryland magistrate for a cell site simulator.

[00:45:01] Speaker 01:
I'm just trying to figure out what's left.

[00:45:07] Speaker 01:
I hear you talking and I hear your response to our questions, but in my mind, I'm trying to think, well, there is a fourth amendment.

[00:45:18] Speaker 01:
And so we have some statutes and rules that are based on them.

[00:45:25] Speaker 01:
But what's left in this electronic age?

[00:45:28] Speaker 01:
And I understand why drug dealers keep getting rid of cell phones, or they don't use, the principals don't use cell phones.

[00:45:41] Speaker 01:
And I was just trying to think, how is the diary different?

[00:45:49] Speaker 01:
And I think again, if the diary law enforcement knew that I lived in DC and that I paid taxes in DC, not a car registered in DC.

[00:46:06] Speaker 01:
And you know, I was a diary keeper, but they also knew I had a home in Maryland.

[00:46:15] Speaker 01:
All right.

[00:46:17] Speaker 01:
and I paid taxes there, et cetera.

[00:46:23] Speaker 01:
Can you still go into my home in Maryland to get this diary?

[00:46:29] Speaker 01:
And so how do we draw that distinction?

[00:46:34] Speaker 01:
Because I think the government is telling me we had to get search warrants from both jurisdictions.

[00:46:43] Speaker 01:
We couldn't just piggyback.

[00:46:47] Speaker 04:
I think we've been saying for at least this type of search that you could get the warrant in D.C.

[00:46:53] Speaker 04:
and then execute in Maryland.

[00:46:56] Speaker 04:
And I think the reason why we can't go into your Maryland home when we have gotten a warrant in D.C.

[00:47:03] Speaker 04:
is that we are invading your home in Maryland.

[00:47:06] Speaker 04:
That's a separate violation of the privacy that the Fourth Amendment is protecting, your right to be secure in your place.

[00:47:15] Speaker 01:
But once you have my diary,

[00:47:16] Speaker 01:
in DC.

[00:47:18] Speaker 01:
You get it while it's in DC, let's suppose.

[00:47:22] Speaker 01:
And maybe I have more than one.

[00:47:25] Speaker 01:
And you have an arrest warrant for me.

[00:47:29] Speaker 01:
You can knock on my door in Maryland and say, we have an arrest warrant.

[00:47:35] Speaker 01:
And there are cases where you can come in and arrest me.

[00:47:39] Speaker 04:
That's right, Your Honor.

[00:47:40] Speaker 04:
That's sort of a separate issue, I think, in terms of

[00:47:45] Speaker 04:
when an arrest warrant authorizes entry into her home, and when...

[00:47:51] Speaker 04:
And I think there's all sorts of case law that I don't have.

[00:47:54] Speaker 00:
This is the distinction here that what you're asking for permission to search is you're trying to get at the location of a cell phone.

[00:48:04] Speaker 00:
You're asking for a warrant that allows you to take an investigative technique and apply it to find the location of a cell phone.

[00:48:11] Speaker 00:
And so that is different.

[00:48:13] Speaker 01:
A defendant.

[00:48:15] Speaker 00:
Correct.

[00:48:15] Speaker 00:
Who's likely with his cell phone.

[00:48:19] Speaker 00:
What you're looking for, this is a cell site simulator warrant.

[00:48:23] Speaker 00:
It allows you to use this investigative technique to figure out where the warrant is.

[00:48:30] Speaker 00:
And so I think that the analogy to diaries and homes is

[00:48:34] Speaker 00:
different because then you have probable cause that there's something in the diary or there's something in the home, and you get a warrant to search for the content of the diary or the content of the home.

[00:48:45] Speaker 00:
But this is purely a locational warrant.

[00:48:48] Speaker 00:
Where is the phone?

[00:48:50] Speaker 00:
And we know that the phone is mobile.

[00:48:52] Speaker 00:
You can move that around.

[00:48:53] Speaker 00:
And so the venue provision of 41B just says a magistrate judge can issue a warrant

[00:49:03] Speaker 00:
for property that's located within the district when the warrant is issued, and you might move that property.

[00:49:09] Speaker 00:
And so under Rule 41B, in terms of just getting that limited information about the location of the phone, if you have whatever the standard is, I think it's probably probable cause to believe that the phone is in the district at the time that the magistrate is signing this warrant, then you can use that cell site simulator technology

[00:49:31] Speaker 00:
even if it's outside of the district.

[00:49:33] Speaker 00:
But I think what distinguishes this case from the hypotheticals that you raised with the diary is that we're not talking about the contents of the phone.

[00:49:44] Speaker 00:
You would need a separate warrant to get into the contents of a phone.

[00:49:48] Speaker 00:
We're just talking strictly about where is the phone.

[00:49:52] Speaker 00:
And in order to get a warrant that allows you to figure out where the phone is, you just have to show probable cause

[00:50:00] Speaker 00:
so that the magistrate judge can issue it, that it's in the district at this time.

[00:50:04] Speaker 00:
And probable cause is just a fair probability.

[00:50:07] Speaker 00:
And if the person lives in the district and has a 202 number and recently was in the district according to his girlfriend, that's fair probability that the phone was in the district at the time that the magistrate judge signed the warrant.

[00:50:21] Speaker 00:
Because this is really just about whether the magistrate judge has the authority

[00:50:24] Speaker 00:
to sign this because the magistrate judge is confined to the District of Columbia.

[00:50:29] Speaker 00:
But then the contents, all that, I think that is actually a very separate and different issue.

[00:50:34] Speaker 04:
I think that's right, Your Honor.

[00:50:37] Speaker 04:
I think that certainly in this case, if we wanted to, in fact, search the cell phone, we would have needed a separate warrant.

[00:50:43] Speaker 04:
And in fact, law enforcement agents did get a separate warrant to search the phone once it was seized from the defendant when he was arrested.

[00:50:51] Speaker 04:
So I agree that that is certainly one of the distinctions between the scenarios that makes it a little bit confusing and hard to square.

[00:51:02] Speaker 04:
because of the technology that is involved in just obtaining locational data from the phone.

[00:51:10] Speaker 04:
It is hard to imagine a search that looks for locational data that can be executed anywhere because mostly you're searching places and places don't move around as often as phones do.

[00:51:26] Speaker 04:
But since we're searching... Do places ever move around?

[00:51:29] Speaker 04:
Sometimes I think they do when I'm walking around.

[00:51:32] Speaker 04:
They seem to be in different places than I remember.

[00:51:35] Speaker 00:
If it's a car or a van, I guess.

[00:51:37] Speaker 00:
It could be.

[00:51:39] Speaker 00:
How many questions, Judge?

[00:51:41] Speaker 00:
As if.

[00:51:42] Speaker 00:
Judge Garcia?

[00:51:43] Speaker 04:
As if.

[00:51:43] Speaker 04:
If there are no further questions, thank you.

[00:51:44] Speaker 04:
We'd ask the court to inform.

[00:51:57] Speaker 02:
Thank you, Your Honor.

[00:51:59] Speaker 02:
Judge Garcia, the answer to your question about the brief is page 15 of our initial brief, and then at page 20 of the reply brief.

[00:52:11] Speaker 02:
With respect, I would, although, you know,

[00:52:15] Speaker 02:
I'm going to read the sentences from the initial brief.

[00:52:19] Speaker 02:
Thus, subsection B1 authorizes a search for a person located within the district, while subsection B2 authorizes a warrant outside the district only if the person, quote, might move or be moved outside the district before the warrant is executed.

[00:52:34] Speaker 02:
Here, the documents submitted in support of the warrant did not state that Thorn might move outside the district before the warrant was executed.

[00:52:43] Speaker 02:
And the warrant issued by the magistrate judge did not authorize a search on this basis.

[00:52:50] Speaker 02:
Law enforcement's application for a search and seizure warrant requested a search of a person or property located in the District of Columbia.

[00:53:02] Speaker 02:
Part of the reason this might not have been that much of a focus at first is that the reference in the affidavit to B2 was not even mentioned by the district court in its lengthy opinion.

[00:53:19] Speaker 02:
It was only in the government's opposition brief that the government started to rely on this one passing sentence.

[00:53:28] Speaker 02:
And so in the reply, page 20,

[00:53:31] Speaker 02:
The reply brief goes, explains why just referencing in part B2 does not suffice to establish, actually getting to good faith, good faith that the law enforcement was seeking a search outside the district.

[00:53:50] Speaker 02:
So I would like to turn to the diary point, because Judge Rogers, I think that's an immensely helpful way to look at this case.

[00:54:01] Speaker 02:
In closing argument.

[00:54:03] Speaker 02:
The prosecutor talked about the contents of the cell phone, mentioning, and this is discussed at length at page 42 and 43 of the initial brief.

[00:54:14] Speaker 00:
But there was a separate warrant to get to the contents of the cell phone.

[00:54:16] Speaker 02:
I just heard that.

[00:54:18] Speaker 02:
I don't know if that's that.

[00:54:19] Speaker 02:
I don't know if that's in the briefs.

[00:54:20] Speaker 02:
And I need to double check that point.

[00:54:23] Speaker 02:
And I'm not sure it matters.

[00:54:25] Speaker 02:
In fact, I would say it doesn't matter.

[00:54:26] Speaker 02:
Once you have located the cell phone and arrested the defendant, you're going to be able to search.

[00:54:30] Speaker 02:
But Judge, I will research that point.

[00:54:32] Speaker 02:
But I don't think that alters the serious jurisdictional flaw in the south side simulator.

[00:54:42] Speaker 02:
search either the magistrate judge had authority just to uh to uh to say that to authorize it or he did not and judge the I do understand what the district judge seemed to be saying what the prosecutor was just saying and what I hear some members of this court saying is that somehow once you have probable cause to believe

[00:55:05] Speaker 02:
A cell phone is located in the District of Columbia.

[00:55:08] Speaker 02:
You have to use Judge Rogers' app term carte blanche, you being the government, carte blanche to search anywhere outside the district to set up that cell site simulator.

[00:55:21] Speaker 02:
anywhere outside the district.

[00:55:22] Speaker 02:
That is, and why?

[00:55:24] Speaker 02:
Why?

[00:55:25] Speaker 02:
Because a cell phone, well, obviously it might move.

[00:55:30] Speaker 02:
That is a staggering proposition.

[00:55:32] Speaker 02:
I mean, maybe Congress would say that, but to say that the rule 41B2 says it, when it explicitly says, if you want to go outside the district, you need to get authority to do that.

[00:55:45] Speaker 02:
And to pick up on the train example,

[00:55:48] Speaker 02:
The train example, which is in the legislative history, is if law enforcement believes the defendant is going to get on a train to go outside the district, say that in the affidavit.

[00:55:59] Speaker 02:
So he's getting on a train to- Thank you, Mr. Cohn.

[00:56:01] Speaker 00:
I think I understand your point.

[00:56:05] Speaker 00:
Mr. Cohn, you were appointed by the court to represent the appellant.

[00:56:08] Speaker 00:
And we thank you for your assistance in this matter.

[00:56:10] Speaker 02:
OK.

[00:56:10] Speaker 02:
If there are no further questions.

[00:56:17] Speaker 00:
Teases submitted, thank you.