good morning your honors may please the court my name is bruce bryan on behalf of mr beale this case raises the issue of what a warrant must say to satisfy the particular ty requirement of the fourth amendment as it would pertain to a search intended for computers in a designated location now here mr beale contends that the warrant at issue here did not  particularities requirement of the fourth amendment in that the warrant was separated into clear sections dealing with the separate components of the fourth amendment one component being the place to be searched and in describing the exterior of the building i submit that the warrant should have said explicit reference to computers allowed this seizure of computers didn't it  absurd not to magine but it it meant also search see what they said i respectfully submit not in the first reason i would say that is again going directly to the language of the fourth amendment and go undercut the notion that the officers who did that acted in good faith under lee i mean you know we could decide your the question that you're posing but in terms of officers very busy argument which in english terms is a nice one fine but officers there could they possibly tell the difference true the good faith exception is broad and it but it does recognize for situations and the supreme court has recognized for situations in which the good faith exception does not apply here mr beale contends that it did not apply under the fourth exception which is that the claim that the warrant was so facially deficient that it was on reasonable to rely on the warrant and the basis of that argument is that the warrant is attachment be clearly spells out computers and all of the related things it's why isn't that sufficiently clear here i would the contention would be it does not pertains to particular particularize in the descriptions of the items to be seized a separate component of the particularly requesting that the face of the warrant the first page should have had the courts have recognized that there are very highly guarded highly private types of containers and so farther it is for example this war didn't just simply say you may search anything that is within the confines of this building and then also set in and would require required to say that you may also search storage areas and why because it you need that direction there there is this expectation and specific need for direction to be able to search storage areas well here we have in the in the this court and others have recognized the highly great and  expectation of privacy in computers great immense amounts of information stored much of it private if there was ever anything that needed specific direction as to saying you may search this it is at now what i would also do is to  s state to the court the opinion of riley by the supreme court and it's i think it's very close by analogy to what i'm talking about in that case there was a search incident to an arrest of an individual who had a cell phone on him and the argument was we only needed the right to search the person to be able to search the cell phone if we have the right to search generally we have that right right to search specifically into the cell phone supreme court said absolutely not you must get a warrant that specifically allows the search of that cell phone there all the difference between a situation like that that speaks to the person but nothing about the phone and here where it says that they and seize the phone if if in riley they had said that they they could seize the phone that that's different that's a different situation is it well the argument you said about a storage area yes that you can't see you can't seize a storage area so one word covers of a whole thing with a phone you can  suppose you could distinguish but why would you and or do well one is to let's look at the fourth amendment itself and what effectively the argument is saying here is that the fourth amendment need not have said and spelled out the fourth amendment says you must you know the first component specifically designate the crime that there's probably cause for second explicitly says you must particularly describe the place to be search and third you must particularly describe the items to b seized so to say that well a warrant that only says you may seize we don't know if we can ignore that the fourth amendment says exquisitely the warrant must also say  that particularly describe the place we search so in other words it is saying that it is implied in the warrant the right to seize our right to search when it gives the right to seize the fourth amendment does not doesn't mean that you have an ultimate right to seize and take away because that is more i have more trouble seeing it in the opposite direction well it's an interesting argument and also if i might point out of the argument there's a seven circuits case pfeifer on which the government relies and that case is looking to rule forty one which says there's the right to later search computers one after they've been se first i would say no federal rule can limit what the fourth amendment requires of course the second is that if you look at that rule it does not in any way limit what the for fourth minute says rule forty one says but the contents of the warrant is sub part ebay says you must list the place to be searched sub part b on which the government relies here and five for relied says in a warrant issued pursuant to sub reference this affidavit but nevertheless it means attachment the clearly contemplates both a seizure and a search of the computer equipment in addition there is the a done them that the magistrate judge himself appended to the warrant which provides instructions for the search of computers quote authorized by this warrant now that clearly shows again the magistrate judge reading this warrant understood that it would include a reviewing the computer equipment case law also supports our view again iest decision by this court the court recognize that quote i warrant for computer data presumptively authorizes the later review of media and information consistent with the warrant as a matter of policy if the place to be search was included the words computer and peter in quitman and all the items listed in the attachment where the items to be seized were not particularly specified but just as a matter of practice wouldn't it be a good idea if one just said as used here was a form that tries to cover a lot of different situation oh i know that you know that forms are forms you can make better forms that is true your honor but again i think as a policy matter the policy concerns that the defendant keeps raising is that a computer is akin to a residence and you can by allowing the search of a computer you can go through all the files that a person has like a like a file cabinet by listing the file cabinet as a place to be searched it doesn't add to the restrictions on the search the restrictions on the search on the what makes it reasonable and what brings it down as within the bounds of reason this is a pacific specific items to be a search seized with relation to the crime for which there is probable cause and if you look at the the a done i'm sorry the attachment be here it is very precise it does mean though a computer searches like the search of a file cabinet if you're looking for  documents that are evidence in financial fraud and you have a file cabinet you have to at least take a look at many of the files and yes except that a file cabinet is only person's privacy is greater when you're talking about a computer so that doesn't mean that you don't have a right to search or it but maybe more specific city would be used and i  think the specificity here your honor was provided by the attachment be and its dedication reading that you know carefully if it is is quite precise and what they're looking for and it is tells ties back into the crime itself and for which there is probable cause there's no contest here that the warrant otherwise was sufficient and so that is what does the work really the place to be searched and we go back to the fourth amendment this complied with the fourth amendment the place to be search was date code industries at the time of the warrant was issued with the government did not know who and they could industries was sharing child pornography on the internet we the agents walked in to talk to the only one of the owners and then mr abil came forward volunteered to talk to the agents and provided he can essentially can vast that he was the one they were looking for up into that point we did not know so in terms of specifying a place they have the place was a specimen specified as much as possible here i think including storage containers and again the fact that it does contain storage containers in the place to be searched shows that that once you're down to that level what's only doing the work of preventing an unreasonable search is the connection of the items to the to the crime and  the attachment b really does narrow it down as much as possible and within the bounds of reasonable mess i like to quickly address the other issue that may come up on our bottle which is the whether mr bill was in custody at the time of his his questioning by the officers there or as the district court found there are numerous factors here that support the idea that he was not in custody at that time  agreement which kind of covered the legal ground which suggested that the the kind of weight of authority in the circuits is that it's the defendant's appearance even if it's the government's burden humanity and i the district court with the burden on the government it did and and so i think it's not an issue that has to be addressed we raise it just as the flag that issue but it's i think it it makes sense because the standard here is that the government has to affirmative convey that a person is not free to leave and also that there is a level of coercive atmosphere akin to a station to station house questioning and a kendo formal rest and i think when you're trying to prove those question but there is numerous factors here that in favor of finding that he was not in custody he volunteered to talk to the agents he told one colleague to leave the room the room was an open room it was not closed he was interviewed in his place of business it was there was familiar surroundings he was not in handcuffs he was not restrained there was no physical force the agents which way does the fact that you tell him that he can go to the bathroom but i mean you can you can look at that either way hey you're free to go or you have to get our permission to go to the that's true and about i think it was it was more poses a question like do you want to go to the bathroom again that does that does perhaps i don't know which way that yeah it's but again i think that the district court looked at all the factors and never said to him you can leave any time they never said that but they never said you can't and this is  something the court has has come back to you in a number of times you cell phone they wouldn't let him use it while a search was being conducted on the phone it was as a court found the district court found under the circumstances i think a reasonable person would as would  and again he never asked to go outside he also understood that that what was the purpose of keeping the cell phone was to review what's on it i think there may be people much younger  doesn't meet the standard the standard is quite high too to have a multiple kind of if there's multiple factors at issue here that did not rise to the level of creating such a coercive environment that this would be akin to being in custody unless there's any other questions i will rest and a brief thank you thank you will hear the rebuttal in addressing what has been said about the custody issue yes there are multiple factors here that way i submit in favor of saying that he was in custody and i get a set of riley cases the importance of a cell phone i mean to say you need a warrant to specifically search a cell phone why because there is such this heightened expectation of privacy in it and if that is taken from you and here not only was it he said i can't use your phone oh it's being searched well then there's no offer to use any form of communication with his son so that is a factor to look at in combination with others and then the volunteer to to talk to them right when the when the agents arrived he wasn't their target they didn't know he just agreed to talk to the argument  and as far as statements goes it would be subsequent to his initial incriminating statement as to whether these this continued interrogation should have been should have been allowed at that time or if he was really subject to interrogation in custody an argument of turning to the fourth amendment issue saying well we didn't list we didn't know or in a sense kind of we couldn't have listed the computers before we went in and the warrant i would submit that's not true i mean by the nature of the crime that was asserted here that's where the where the evidence came from of course it was through computers so of course they would have had probable cause to search computers so th in there where it says and search you so the whole intent of attachment b is you can seize the point of seizing them but to search them you need to have explicitly and  here let's for example what did happen in this case when you had a search happen first that preceded the seizure of the computers now it didn't seize all computers they seize those computers that after the search and review an initial search and review disclosed certain computers that they said ok this week these these computers we believe have evidence of of a crime we will seize these so the question is what's the authority there from the word to why would you there are some things that you might see because of what they are in themselves but why would you in a situation like this ever be given a foreign  to seize a computer if not just well i think it depends on the situation in the vast number looking about this really well we're you are looking for porn why would you computer the computer is not itself pornographic i might think so but most people wouldn't think the computer itself is pornographic so why in the porn and did seizure ever mean anything except you look here we have a business to coby enterprises there was in multiple employees in the business business that depended in great part on computers large numbers of computers so if a warrant simply said we se computers then isn't that overly broad to say seize all of the covies computers will take everything out of there shut this business down then we'll search no reasonably in terms of to satisfy the fourth amendment and probably because there would be then an initial search to determine which of those in was only a few that would might or did contain evidence of a crime and let me extrapolate the example supposing you have i b m so you're supposing you're at a plant in binghamton their main one of their main areas thousands of cute computers mainframes one employee has looked for child pornography on some