this circuit first case of the first day of this panel sitting how we have four arguments this morning we'll hear the first two then take a brief recess and then pick up a final  to think this group familiar with our lodging system and those in the audience you're coming up later probably are as well key thing is red light stuff and you finish your sentence or whatever else and if we decide to give if he isn't lost there please the court your honors in this case the district court is soon that detective ailes violated the fourth amendment by conducting a warrantless search of digital files that were contained in a cyber tip from the national center for missing exploited children the court nevertheless denied mr reddick motion to suppress based on the good faith exception to the fourth amendment the district court committed revers error in two ways first it should have applied the independent source doctrine rather than the good faith exception second even if the good faith exception applied it misapplied that upset exception first the district court erred by family to apply the independent source doctrine which the supreme court has made clear and off when an officer sees evidence during a fourth amendment violation and then obtains a war source is exclusive and to even consider good faith was inappropriate no your honor when does it first get presented in this case in an appeal your honor i was at effect you think what we would usually do is such an argument i don't think it effects at all your honor the government what was obliged to give in the fourth amendment violation the government was obliged to come forward with an exception they only came forward with one exception so i think the district court erred and either the government waived the issue and there's just a fourth amendment violation here or the dish accorded by not applying the exception so isn't up to the government to find an exception to the warrant once the district court found a fourth amendment violation and here they are clearly the independent source doctrine definitely cause for reversal because detective ailes stated point blank that he never realize on  values he only relies on the images which he opens up without a warrant and then he then gets a warrant based on those images you see that the government may have waived the or even just to be clear i assume you agree we can affirm for any reason that's available on the record the government one below i don't think you can affirm because the independent source doctrine applies and if it doesn't and it should've applied then i think you're just left with a fourth amendment violation i mean on any ground but where the supreme court says this is the doctrine you apply in these circumstances meaning the independent source doctrine you can't go on and say ok well we're going to ignore that and then affirm on some other ground and so it's basically the same argument what i'm saying is the court is stuck because this plane court says you're stuck with the independent source doctrine and you can't go on a good faith because i say i say in our br good faith if you use good faith where the independent source doctrine applies it reads the independent source doctrine out of the law the fifth circuit case is an independent source doctrine don't even need to exist you can erase them from the books because you just jump over the subjective intent of the officer under independent source and go on to good faith which is objective so the two are in conflict and i think i've thought it's a conundrum because independent one test and probable cause is a second test and so i would suggest to the court that independent source comes first and good faith normally goes to probable cause so under a str oh you would do independent source then you go to probable cause and then as the court usually does for example a massive he says well i'm probable cause it's close enough to the line or the officer thought he had probable cause and so this is ok but because there are two independent inquiries the only way i could reason my way out of this was to think ok well good faith goes to the probable cause probably not to the independent source prom and amazingly enough i don't know why there's no case on this i don't know why no one's at least from my research knows no one's ever seen there's independent source objective good faith object of but i think the reason there is no case on both is because they normally would apply independent source and that would be the end of the question else most standing of your point you are relying on the fact that if independents who are is relevant that is the only applicable doctrine and if it doesn't apply game over there is there is no case that says that but the supreme court has said there is no case and i don't know of any case that ever thought of the conundrum that i saw in this case but the supreme to clear to need a case is that the point i'm sorry to clear to meet a precedent but it's your clear under some of being more present facetious but i think that is your point isn't it it's too clear that independents or supplies and you stop there because the supreme court said one officer used evidence during a fourth amendment violation and gets a warrant you look at the officer subjective intent that's what you do and of case and so i think it's too clear to need a case because the supreme court has told us what to do in these circumstances want to address independents who are itself who we were are to say that the government if it is applicable indeed could use we could use that doctrine to affirm wise independents who are not going to help the government in this case so why would you get to the merits of independen source for me yes i don't look detective hill said he always opens the digital files and doesn't rely on hash values and then gets a warrant and given the fourth amendment violation he saw the files got a warrant based on the files the search mr redick sounds so an independent source it's clear he was motivated by the information he gained during his fourth amendment violation you know i wonder whether that whether that's really the case i mean he and as far as he was concerned he had probable cause to me he had he had a basis for getting a warrant right then he opens up the files i mean partly perhaps to have to explain to somebody who doesn't understand it as well as he does why he's doing this but i don't i don't think that i don't think that you can assume that that particular officer thought that what he was doing was contrary to the fourth amendment that's usually when some lawyer gets up and makes that argument to me i'm thinking oh dear but i mean given all of the scientific background that they had for this which really is what the case rises or falls on it seems to me the idea that that at that particular point because he is a belt and suspenders man this case is over  correct to me well i think as i read his testimony he said this is what he does oh i understand that's what he said you know and you got to give him credit for being up front but still i mean given what he knew about the quality of the information he had the idea that because he's he's going to always check it at the last minute we've got a fourth amendment violation do i mean i have to say i don't i'm not sure i see that well that you're on a route that gets to you i guess could face the fourth amendment case is a lot like the key district court case because the provenance of the library that was used and the hash values is unknown which was the case in kenya and the  the what happens is the district court even made a finding that no criteria for the library was in the record for no person who made the determination of what goes into the library was in the record and it it's right in the district courts right in the beginning of its opinion it found multiple contributors go into that make the decision on that ibrary the district court the record contains no criteria governing what images are included in it or who makes the decision and the original images in the database are destroyed and that's at record page ninety three so just isn't keith the provenance of the library that's being used for comparison is unknown so just as the district court held in keith when you look at the hampshire values and the comparison and you see that this matches some other file but you don't know what that file is because there's no provenance for who determined it and what criteria were used so there's a comparison but and i think this is what you're getting at your i mean you're saying well he had that the hash values match but in this case and that's why this record so important the question is what did it match and the district court  keith actually that quotes in the brief and says ok it match something but who knows what it matches and then the district court that case miller that the government cites distinguishes keith and says keith went off on the ground that there was no providence for the hash value library that was compared to but here we know we have a provenance and the investigators looked at the images in the library so this is different so your honor to respond to your question he didn't we don't know what the provenance is for that comparison so we didn't have probable cause because it matched something but we don't know what it match subtly in a way what yours may be saying is if the government was going to go down this path they needed a lawyer it matter yet they needed a better record yes your honor here they needed a record of what w reliable we know who does it we know what the criteria are and so yes detective iles did have probable cause with regard to the fourth amendment vice and that's also why walter applies because when the provenance of the file is just the question then this case becomes like walter we know we have some labels on some packages or some film but but we don't i'm sorry we know that there are some images but we don't know what they are and so like walter looking further and opening up the images is going farther than what the independent entity or the private entity did so walter would apply for the same reason because there wasn't a private entity that looked ach what was ultimately seen finally i just say that in our brief we show that the fourth amendment does apply that it was violated i just want to point out that in riley with regard to the fourth amendment protection for digital files  riley of course the supreme court was talking about privacy cell phones but there's a passage in riley where the supreme court goes on to say and this violation that you know this is even worse because the cell phone connects to something else which would be internet and so that makes the violation even worth so i don't even think there's a question that digital files are protected by the fourth amendment and that the fourth and then who is violated here for these reasons your honor i'd request that you were  e the district court's decision and remained thank you very much we'll hear from you again good morning in may it please the court and record for the united states although this appeal presents a novel fourth amendment issue the law provides clear answers first detective ailsa's warrant search of mr rex digital files did not violate the fourth amendment because that search did not improve misapply exceed the scope of microsoft's photo d n a search which effectively revealed those files to be child home microsoft is the initial party who conducts the search they do this microsoft does this because they have a business interest in keeping child pornographer off of their services so be on their own conduct the hash value search at that point to read it obviously voluntarily chose to use the microsoft correct and this is i is the cloud storage program that uploaded his files to it and i believe his testimony was that he didn't know that they were being uploaded but be that as it may then what happens under eighteen u s c twenty two fifty eight once in e s p an electronic service provider such as microsoft has reason to believe that there is known child pornography they are then obligated to report that to the national center for missing and exploited children kno case so far as i'm aware that nick make at one point there analyst did open the images and you saw that in the ackermann opinion that now just a score six wrote for the tenth circuit that does not appear to occur anymore  and now instead in this case what happens is nick make gets a cyber tip from microsoft and immediately passes it to the local law enforcement entity here being the corpus christi police department then that cyber attempt in this case is just not only it's information about the files in the subscriber so here we have the file names but they also attached the files themselves and so what happened was microsoft the private party did a hash value search nicknack as an intermediary passed it on to the corpus christi police department and then the officer then opened those files microsoft obviously a private party and that's not disputed right determines that a particular file has a hash value we're going to have values that matches child pornography correct using information from nic my car and leave is there any evidence  yes i understand no there are no cases it's also because this is it's a novel issue it's actually one that's being litigated up frequently in district courts around the country because of the prevalence of cyber tips and that's why we support oral argument why we're pressing this fourth amendment issue there aren't any cases but we have the district courts on factual finding here at our away ninety three and ninety four this came in response to mr radix argument in the supplemental brief stage before the district court and what he again presses on appeal and what you've heard from my friend is that somehow we don't know whether these files are actually child pornography it's not that we have a problem with hash value searching that it's a match but we don't know that it's child pornography the evidence that mr radek cited below for that proposition were two news articles the first article all involved a pornographic actress who was mis identified as a minor the second news article were parents or grandparents who took photos of their naked children i believe in bathtubs they went to develop those photos and they were then turned over  suspected child pornography here's the critical point here none of those news stories have anything to do with the hash value database none of them say that oh by the way this for example in that first article  pornographic actress said that file is in the hash value database and so this argument was pressed to the district court here's what the district court found and i'm going to quote from the record here there is no evidence that such over inclusiveness has occurred in the nicknack database or is widespread impugning the overall integrity of the database instead of law enforcement regularly relies on a hash value match with the nicknack database result to successfully identify images that are indeed images of child pornography that's a factual finding by the district court mr redick hasn't shown that finding to be clearly erroneous because again it's the same argument as as below it's well we don't know and here are these two news articles it's the same argument that the district court rejected and i know that when i ask a question yes microsoft is acting here and it's an sony or others they know they are not acting on the behest of law enforcement again they have individual private business interests and keeping them out here is my understand that i understand that so so when you fall into their clutches let's say you are a pornographer i guess that's were and you fall into the clutches of microsoft maybe didn't even know you were going to be in their clutches but you are they don't warn you that we're going to if we find any unlawful material or material that we think may be on lawful like porn on your data we're going to turn it over to the police they don't they don't warn anybody about that i disagree with that judge king and that's because of that i'm not i'm not making a statement i'm as asking a question sure they do warn them and that's in the services agreements are the terms and services now in this case to be candid the district court excluded we presented the terms and services or the services agreement of one drive which is the successor program to sky drive which is what nationally signed up for but what what the what the officers testified to below and again they granted the district court did not credit this was that the terms are materially the same if you look at the terms and services for one drive which is in the record i believe it or starting at or away five seventy three you'll find at the very outset it says  rules you cannot break don't do anything illegal don't engage in any activity that exploits harms children and then it says we reserve the right to review your content for  violations of this so in there microsoft is warning them your files aren't necessarily private but again i want to be very clear again it's not an issue in this case but no microsoft is not a government agent that is emphatically not our position microsoft google sony whoever it is nobody is required to create these databases right microsoft on its own could decide we're not you know this is too much trouble hash value searching is too expensive and so we don't even want to do it and anybody you can upload whatever you want to our servers at that point eighteen u s c twenty two fifty eight a would not be triggered because microsoft would have no idea that there is known child pornography on their servers it's their decision to create this platform and then statutory obligation to turn it over they are not acting on the behest of law enforcer no way meant but it's back up to say that what you just said again it is microsoft's decision to create the database is that what you're saying yes that's correct if you use the word they it's microsoft's decision to create the database and then turn it over to law enforcement they're not doing that at the request of the government yes that's correct yes that so microsoft and this is in the record photo d n a was created in the early two thousand by microsoft and dartmouth call to kind of create this platform for searching and rooting out he was not at the behest of law enforcement i still want to stick with the fourth amendment violation point at least for a little bit longer with the court's permission because i think it's important that the one case that does not go mentioned and mr radix reply brief that the government relies heavily upon beyond baltar and jacobson is this court's opinion in runyon the runnion of running apply the private search doctrine to the digital context and they said there are two questions first that the government learned something from the search that it couldn't have learned from the circuits testimony and second if so does the defendant have a legitimate expectation of privacy in that information applied here the answers to both questions are no two the first question runyan further clarifies what it means for an officer to word new information within the meaning of a fourth amendment search in runyon as words an officer does not learn new information when he is substantially certain substantially certain of what he will find inside that closed container based on the private searchers testimony his replication of the private search and his experience here detective ilse readily had that substantial certainty that he would if he had the photo d n a hit above everything and the reliability of that database both in terms of the hash value searching as well as the fact that there are that there is no evidence of false positive even before he opened the file in effect microsoft had opened it for him is better than objective tests on the run or subjective whether he  substantially certain of what's in the far i don't believe judge southwick that it states whether it's objective or subjective i would guess that it's probably objective not  no and that's because he had no reason to believe that this was an unconstitutional search i mean he frank i mean he very candidly testified to this at three twenty in three twenty one and three twenty nine and thirty and he said this is what i do and this is what every investigator that i know of who investigates these cases do it it's not i mean if he thought that this was unconstitutional why would he be so forthright in this i guess this gets to the good faith exception pointing close enough to the wind of the lid of the whole why would the state judge have signed the warrant i mean after all he truthfully recounted the circumstances under which he warrant so yes subjectively detective else believed that this was perfectly fine under the fourth amendment but objectively any reasonable officer what and i guess this this goes into the good faith exception point in close enough to the line of the letter to the close enough to the line of validity inquiry asks what a reasonable officer have known that his conduct was categorically unconstitutional and the answer here is no i mean there is no circuit precedents on this point there are a few district court cases the most recent ones which we've cited in our brief brief mail were in wilson say that this is perfectly acceptable under the fourth amendment mr r credit key from the district of massachusetts says otherwise but you do have two federal judges from other districts by the way in the wake of riley saying that this is perfectly ok under the fourth amendment under those circumstances how would it how would an objective officer have known that this was categorically unconstitutional the reason that i hear from mr radek is that well he shouldn't detective should know because of riley versus california or riley simply an app is it to begin we are not contesting the fact that digital five dollars are protected under the fourth amendment but this case is much more complex in that this case has to do with third party conducts a search sees what's in there and then turns it over to law enforcement what happens this is not a warrantless search incident to arrest as was the case in riley certainly if detective else let's say had stopped mr ruddock for a traffic violation rifled through his cell phone and saw the these images of child pornography clearly riley would apply but that's  we disagree as to both points that is that it's the only a political doctrine and also that we've waived it i'd like to begin with the first point as we stated in our brief we are aware of no case circuit supreme court that treats the good faith exception and the independent source doctrine as the one or the other proposition you know i keep i heard my friend keep saying well the supreme court says it's the supreme court to his argument if they did so this is the doctrine that has to be applied but but nonetheless that is the government's going to apply is that leasing be a fair characterization of some of fact i don't want to characterize it for him but let's assume that that is the characterization then one would expect about the four known exceptions to the exclusionary rule one of which of course is the independent source doctrine and then it gets onto the fifth exception which mr radical vigorously disagrees with and again to his credit others to other circuits have held have rejected this but this court went the other way this court went with the majority of circuits and said that you can obtain warrants on the basis of tainted evidence if two criteria are met and we think that's right again i don't know of any case that sad is that only the independent source doctrine can apply i don't think the government has waived the argument either we have stated in our brief that based on the statements in runyon that we don't think that there is necessarily a faction of facts in the record to support this court on its own applying the independen doctrine and that's because in runyon they remain and dead for consideration of whether the officer would have sought the search warrant had he known that his conduct was constitutional because  no factual findings in the record that's the case here too there aren't any facts in the record that state that what detective else would have done and i think it's important to note and i would urge the court if it's inclined to go down this r please review what detective l sat at three twenty and twenty one in three twenty nine and three thirty he did not say he he did not say that he never would apply for a search warrant under these circumstances he basically said this was his practice i suspect although of course again there are no facts in the record on this point i suspect that if he knew or had reason to believe that this was unconstitutional he would have sat i would have gone out based on the hash value alone and gotten a warrant but again we we acknowledge those facts are not in the record and so at this court is somehow inclined to find that there was a fourth amendment violation that the good faith exception doesn't apply we have alternatively requested that this court remain for consideration of the independent source doctrine as well as the reasonable expectation of privacy related to the terms and services to get back expectation of privacy and it just wasn't fully developed in this case because of the district judges rule who is arrested this removed if the services agreement says if we find this sort of stuff we're going to turn it over i see my red light is on if i may answer the question thanks for noting in life and that's the question yes our position would be that had the district court accepted the one one dr agreement that this would be moot we would i'm sure we would still be making the alternative private search doctrine point but in wilson one of the cases cited by the government and wilson cites other cases i think there is also stratton ackerman these are all district court cases they find that based on the terms and services that vitiate any expectation of privacy what the wilson which is the southern district of california they then rebuttal first of all there's no agreement in the record that applies to mr reddick the government tried to introduce an agreement that is later in time after the name of the service changed but there is no agreement in the record that applies to mr reddick second of all with threatened that regard the government doesn't have two cases on its side wilson as the government noted goes off on the fact that there was an agreement that applied in that case and therefore there was no expectation of privacy so that doesn't apply but wilson which a government thinks is on its side said had applied to good faith exception would not apply because a warrant would have been attained by ten evidence so there are two cases on the government's side second the district court found that there was that as i said there was nothing in the record or nothing that the government introduced supported the provenance of that database so for the government to say well we didn't come forward and show that the database was flawed that was their burden it was their burden to show that the database was reliable and that the good faith supported it for the district judge and make a finding that there was nothing put on by the government that makes this thing reliable then doesn't give us a burden to do anything third with regard to runyon and substantially certain the record in this case doesn't show that detective was substantially certain it shows the opposite he says he doesn't rely on hansch values and he said no investigator in his position would that chose that he wasn't substantially certain would have gotten the warrant and finally with regard to the well suit third point with regard to the detective believing he wasn't violating the fourth amendment the answer under leon is so what leon says objective belief is not enough for good faith so we have a detective who says gee i can just open up digital files and i believe that's ok under leon that is not good enough subjective good faith or belief is not good enough and finally with regard to massey i would say i would agree with my colleague that massey is pretty well written and but it's completely different i mean detective howard comes on the scene after the plane is stopped after they have the itinerary for the plane after other officers and task forces are doing things and detective massey goes and gets a war here we have an officer who contrary to reilly just opens up digital files willing ellie and goes and gets a warrant so massy and warner which have multiple layers of investigators and investigations  it's completely different we don't have one officer who's who violates the fourth amendment goes and gets a warrant and both leon engro tell us that in an officer can't just violate the fourth amendment