the simple the simple fact in this case is that there was not probable cause to search my client's apartment in november of two thousand and thirteen there was not probable cause to search my client's  apartment but unfortunately because of the misstatements of officer wingert the fact that there was no probable cause was concealed from the issuing a judge who then issued the warrant not knowing the probable cause had not been established officer wingert concealed the true facts of this case from the issuing judge officer wark officer wayne gard knew that he had not seen the c s enter the apartment building he knew that no officer had seen the c s into the apartment building notwithstanding that knowledge he represented to the issuing judge that the c s was under constant surveillance throughout the entire control by officer winters guard compounded that misrepresentation by his further representations that there were quote unquote surveillance units in the area your honour's as your owners know us are going dark testified in front of the district court that what he meant by surveillance use units was not actually surveillance nobody was actually surveilling the apartment in fact surveillance units were only backup that were in the area and could not see the c s in addition to officer wayne guards misrepresentations about what he and any other officer actually saw that day officer when guard made misrepresentations whenever he represented to the court that he quote unquote searched the c now after one guard to testify for the district court that a search was performed your honors but the search that was performed by officer wing guard and officer barksdale was not sufficient to to eliminate the possibility that the c s was secreting drugs or for contraband or for money of any kind to the area in front of my client's apartment and then and then switching those out for the money let me let me restate that officer pat down your car herco moreover i believe it was officer wayne dyer testified that the whole search happened inside the vehicle so the c s then would be sitting in the people pulling out his front pockets we still a presumably got back pockets the only other mr pfeifer by anticipating that the search would not be as thorough as possible therefore secreted a few bindles of heroin it somewhere into his shoe or it might not be found if the officers didn't conduct a very thorough search and did not that he sort of snuck down hid behind the wall never actually knocked on the door came but that's the theory that's exactly right your honor  can you address the fact that what we're talking about is probable cause rather than proof beyond a shadow of a doubt absolutely judge you didn't know enough about the c s and you didn't know enough about that relationship of the c s to the defendant to know whether or not the c s would do exactly what your honour's just described that's it that's exactly our point that's that's been our our issue throughout this case he didn't provide any more information about that  your brief raises a number of issues i wonder if i might just ask briefly about one of them a couple of them rather than the as i understand federal rule of criminal procedure forty one years if a federal search warrant is issued to seize certain electronic devices that's treated as authority to search those devices is there any similar rule under illinois and my reading was making it even broader than that like the court recognized in that case there there was no warrant but the court was saying also it said even if even even excuse me even though there was no warrant we still think this was necessary so i  believe the court in that case was pointing toward there was an additional requirement and in fact officer tenet who took that loss and i believe was even testified during the trial that he it was his belief that he should've obtained a warrant to further search those devices so it's not like the officer thought well i can just do this and that's that's lawful the officer testified not i should have got another warrant i just i didn't you one of your other why that would be the case because he was not that the government put on a massive amount of evidence many many photos were admitted and all all we were asking your honor was that we be allowed to put on a few witnesses i think we had four or five witnesses what were they going to say they were going to testify as to the relationship between mr pfeifer and c t and that because it was our theory that  t would have had sexual relations regardless of whether they were electronic the right devices there to record to record these things and what were they going to say plans that they were largely just they were largely regarding just their knowledge of the relationship to show the jury that is not just my client that was saying this it was in fact something that other people had seen opposing counsel as the court has noted the issue here is not whether the sale of heroin occurred beyond a real or beyond a shadow of a doubt but whether probable cause was established significantly probable cause requires the probability or substantial chance of criminal activity on nov sixth and november thirteenth of two thousand and thirteen the confidential informant purchased heroin from the defendant at the defendant's apartment he was first search then call the defendant to arrange the transaction he was then driven to the defendant's apartment as you arrive you walked up a sidewalk approximately fifty feet into the law enforcement and landed on a cement landing then turn right and descended stairs significantly your honour's at the base of those stairs was only the defendant's apartment apartment number five he was out of the view of officer wangari for a before he reus scent of the stairs and then walked back to the law enforcement vehicle miss mayo and the defendant place significant emphasis on the words kept under constant surveillance that term was indeed in the affidavit however to accept the argument that probable cause was not established this court must ignore the rest of the affidavit throughout that affidavit officer wang guard makes clear that indeed the confidential source was outside the presence of law enforcement at minute in the defendant's apartment again obviously outside the presence of one force and finally the affidavit notes that the confidential source told law enforcement that pfeiffer gave him on each occasion fifty dollars for the heroin does with respect to devices your honor to the best of my ability the answer i believe is yes i cannot cite you a statute and i apologize for that counsel however i would like to expand on that if i could just little bit and first your hon the complaint when we talk about whether or not the the electronic devices and the search of those devices fell within the ambit of the warrant i think it's significant to note that the complaint sought the seizure specifically the complaint for the search warrant sought the seizure specifically of cell phones and computers the warrant likewise as the court is noted allowed the search of those cell phones and computers and as the district court pointed out the affidavit for the search warrant noted that the confidential source that had contact with the defendant told that an officer wang guards investigatory experience financial records and residency records were often accompanied in drug transactions and i think it's also a reasonable assumption that in this day and age those types of records are some times maintained on electronic devices by drug dealers yes  authorize seizure of a container right yes a suitcase a briefcase that usually understood is authorizing a search of the contents correct and the district court likewise had that understanding your  could you address briefly the district judges change in position on the evidence of the prior conviction admitted under rule four fourteen the rules of evidence happy to as i understand it the judge so that some testimony from the defendant changed her mind and i was unclear whether there was anything that might have surprised the judge yesterday as the corps aware of the defendant was previously convicted of aggravated criminal sexual abuse in two thousand and eight and state case that the government sought to introduce that evidence pursued to federal benefits for fourteen and filed a motion giving notice of that the court ruled trial the defendant testified among other things that his intent in creating visual depictions of his sexual activity with his minor victim was to quote build a relationship at that time in contrast to the government's theory the case that his purpose at least one of his purposes was his interest in having sex with minor children at that time the government renewed its motion to introduce the prior conviction and the district court ruled i think properly so because the defendant had invited contradiction by his own testimony as to his intent behind his behavior that it was now more provocative than not and it was a bit after the dress any other questions might have been before going in the officer they do when they get a warrant they do their ground yesterday and he testified that he did kno going in that he was a sex offender registry of sex offender yes sir in point of fact that information was not even prior to the execution of the search warrant officer wang guard and one of the ways he cooperated the information provided by the confidential source was a check the address of the sale heroin with the address that was registered to mr pfeifer pursuant to his sex offender registration so that information was well known to law enforcement and you're absolutely correct sergeant lawson prior to entering the who is in charge of the search of the apartment knew that the defendant was a registered sex offender at that address in there was some some concern of course going in that there was a possible  relationship going on i don't remember exactly what he said but i thought that there was something about you know where there was a young person or whatever but whatever it was that he had that in advance yes or just to be perfectly clear in the discovery of the minor victim half clothed and hiding under a bed was at the execution of a search warrant you're correct that information did make its way out certain lawson prior the there was also your honest discussion about the whether or not the probable cause was sufficient and the defense's theory that the confidential source might have secreted heroin on himself and and set up this five essentially the court has noted that the evidentiary standard runs contrary to the argument that argument but i'd also like purchase and came back out and this court turman that that was sufficient to establish probable cause and that the possibility of interaction with any other unit was hypothetical even when contracted with the cid well in this case we have just one possibility to purchase that being the defense department at the bottom of the stairs that was the only apartment that was available for entry were our confidential source went and we have multiple purchases in sidwell there was only one purchase here we have the two purchases occurring on november sixth and november thirteenth your honour's i see my time is short i'm happy to address any other questions that you might have if you mean the time i have first of all and instead well one of the big differences is the officer said well did not try to hide the ball from the issue and judge the officer said well i was honest with the court about what it knew and what i didn't know and that's a huge difference than what we have in this case in this case the officer was dishonest