Judge Tallman finds -- in a quite well-written opinion -- that there's a qualitative difference between (1) forthrightly admitting to the police that you have cocaine in a closed container, which suffices to waive your Fourth Amendment privacy expectations, and (2) using secret code words in a jailhouse telephone call that you know is monitored in the hope that your confederate can dispose of some evidence, which does not.
But Judge Tallman then concludes the opinion by hinting to the district court that this might be a good case in which to apply Chief Justice Roberts' suggestion earlier this year (in Herring) that courts shouldn't apply the exclusionary rule when they don't feel like it. (I'm paraphrasing, of course, but that's pretty much how I view it.)
There are lots of ways to lose a criminal appeal. Even when you technically win. This one's another.
