good morning members of the court my name is sue ellen chatter and i represent dean ballard the appellant who was convicted after agents entered this home with a search warrant and seized child pornography  word in your opening brief and said out that lovely chart trying to convince us to just the opposite well i think we certainly would have prevailed if the panel decision were still good law the question is what nexus to the home or if it did it that wasn't part of the panel this decision or the decision in this case there's no common sense or reason to believe that mr bauer had a computer in his home they didn't have like and they and lacy direct contact with the computer that was downloading child pornography they had no idea if he had a computer he could have used internet sites at cafes address where else would they look for the bills went to a post office box they did connect mr brauer with the home but they didn't connect him with any computer and look at the date that we're talking about and i'm not saying the warrant was stale but we're talking about a website or three websites that got closed down in spring of two thousand and three the agents went to his home in april two thousand  now most people get new computers they change their software if you're looking at commonsense behavior of how people deal with computers they go to internet cafes they change their software they don't you know i don't except that i don't think that's true i think every time i've gone to an internet cafe and gotten on line to check my e mail i'm aghast at the at the previous sites i think people access pornography all the time and internet cafe that i don't i don't think the child pornography collector profile is entitled to much weight at all without any connection that mr bauer is a child pornography collector in a lacey this court's opinion they had him actually downloading child pornography so this court said that's ok now to view him as a collector because we know about it if that's a very hard credit card bills if they're looking at his credit card bill for what he joined the website for and the subscriptions you can see if you went to costco and and we don't anymore wonder whether people have in the other cases the end including gord the government went to the website they took down the companies they closed them down they looked at there and then they looked at their activity and  connection with incriminating evidence at the home of a drug dealer on the assumption that the affidavit establishes probable cause that he's engaged in dealing drugs because the connection here is not just for general home activity it's for a very specific machine that has connections that's traceable to cost a lot of money that people change out every six or eight months worth watching why isn't there a fair probability that the conduct that he's accused of engaging in the is being conducted in a more private location such as his home then in any other place where he might go a laptop computer because this case the affidavit has nothing about his computer activity and i don't think there's any other case like it where there's no indication of a computer that warrants fresh account well and there's another important distinction i'm sorry he  sites and access them in cafes or their employers computer without and pay money to join the website without owning a computer they want the access to the music but they don't want to pay for a computer and they there's many computers to use all you need are your passwords but there's another distinction with that i would just like to mention the websites that are described in court are very detailed in the description there's testimonial description of what was to be seen on the home page i'd like to cite that agent's affidavit here at pages twenty and twenty seven there are very well why and description now it is true whe agents went in they chose to describe for the magistrate certain it's a way shows pictures that they saw but the websites were home page minor girls in various states of undress and another on page twenty that agent said well we picked those web sites that had quote actionable images unquote that's a lot different than the detailed website that said come on and here's what we've got and then had testimonials and descriptions of what they had what about the name of the website can't the magistrate look at w w w load wheedles and conclude that they might be offered to somebody who's looking for child pornography i think that's true and i think that there was child pornography on this and i think that that's part of the story but that doesn't mean this is  think however i think this is a lot less detailed and very bland compared to the gourd website descriptions thank you i'd like to reserve a little time i  but it's different in a way that i think makes the probable cause finding here more solid you may remember in gord that it was a mixed site it included images of adult pornography as well as child pornography secondly it contained a banner that said that the site was in full compliance with the law there's no evidence in this case that there was any kind of a banner that said that this was a lawful site in third this was a case that involved three for most practical spur specter of when i national investigation is discovered there are attempts to get lean information out to my question is why there remains probable cause first of all my probable cause  question of him having a computer in his home and what's being called the staleness issue are similar because that information is drawn through inference from what the expert s tell us about people who collect and download be page thirty two men thirty three sixty two sixty three the actual search warrant itself and very are the officer speaks of three things that are typical of people who privacy and security of their home or another secure place the second point is they keep it close by so that they can access it at any time and third thing to keep it for a long time and that's the theme that is correspondence books tape recordings mailing list child erotica and videotapes for many years slowly paragraph d speaks of digital images that are kept in safe secure and private environments and the last sentence of that paragraph these collections are often maintained for several years and common sense standpoint people who are just accidental browsers or view worst wouldn't necessarily go out and pay money to get images from the internet is a huge source of information a person can google the term child saying that somebody who views cannot defeat is necessarily somebody who works for the i think that a person who pays a lot of money over a long period of time so that he can that he was a collector yes and there are that inference is used here as well as judge kozinski so earlier this kind of sensitive material is not something that is typically viewed on the internet it's not the kind of thing that you would say to your neighbor hey do you mind if i come over to your house this afternoon i want to check out some child pornography websites it's not the kind of thing that you do at your office offices are routinely now trying to intervene to make sure that people don't access the internet for purposes other than their or their look and i i would point out that there's a huge difference between accessing a paid to view child pornography site then to check the internet for baseball the to sticks the person in the context of of getting child pornography i want something different and does something different with that it's not just gathering information ok i would i would point out one other thing that i think is is really still you internet is that each of these websites alone little's dark feeling and b d sisters each of them throughout the add in their preview page either pictures of child pornography or at first minutes of child pornography and once you became a member each of them had child pornography on their sites so this is very different from the  case where there was a mixed site with adult child porn so you see once you get into the member's area of the website is that what you think i think it was this is what you're paying for child pornography we ha but but i don't think it's fair to suggest that this was one hundred percent child pornography clearly even in the affidavit some of it was child erotica which is dressed people and things that are not pornography but what i think the court's talking about and the prosecutor and me were all saying how people behave how computers behave what's common knowledge about how people function and i think before we go into somebody's home to get a computer we don't know he has and get a search warrant to enter his private space the government should be much more sure that there's a connection to the home rather than how child pornography collectors behave how computers work we don't have any real expertise or facts in this particular officer relevant that he had a prior conviction for sexual abuse of a minor and was at the time of the affidavit a registered sex offender the magistrate didn't think so and i agree with him because it was a very old it was a very benign situation as those cases go and we put in the transcript of the sentencing eleven or twelve years before you know fifteen years before where it was a very old girl and he was a very young man and it just happened to be that they were both under age as were saying no but he was very slightly different and then he got a stick smart sentence and that it was a very benign technology comes in and some people don't keep their computers for long and i think before the court permits people to intervene in a home it really needs either only expertise i don't think the fact that people don't