good morning your honors mount larson of the federal defenders for mr edgar your honour's when we objected in district court to the warrantless search condition here the reason that the government gave for it which the judge accepted was that it could be helpful in terms of just ensuring that the defendant is not engaging in any of this conduct ever again but as this court made clear over twenty years ago in the da case elimination of any possibility of risk is not the legal standard moreover in the da case the judge had not made a finding that doe actually posed any risk of or city of aiding and that fact is present here as well judge a guard if you made very clear that specific deterrence was not a concern he said it on the record page fifty two of the appendix explain why his concern was general deterrence that's why he was giving a six month prison term but that doesn't explain why the specific warrantless search condition here is justified so to make clear the reason that was offered by the government for justifying this condition is a reason that this court rejected over search but it's not a quite a random search in that the probation officer has to have a reasonable belief that contraband or evidence of a violation may be fountain presumably needs to have a reason for that so it's something the warrant and permission to come in and sweep at any time of day or night isn't that right yes and as the court is aware reasonable suspicion is the lowest possible threshold for searching the home despite searching the home being the greatest violation of privacy that the supreme court has recognized putting that to the side the question here is is this condition reasonably related to the relevant sentencing factors and is it doesn't work a greater deprivation of liberty than reasonably necessary we've  feels both of those tests and failing either one means it has to be struck now please direct me to the areas of concern for the court i think we laid out why the legal error is pretty clear in light of the doe case in light of the brown case which made clear that you can't impose a condition just in case there has to be an evidentiary grounding something that makes sense for invading the person's privacy be here he made very clear that this first time offender was that no risk averse that if eating  lives at his home with his wife and four adult children is it fair to say that he was at no risk of recidivate ing i mean he did have specific deterrence in mind and that is a consideration that the government's entitle to and the courts entitle to take into account  its discretion your honor as in conditions is not right your honor is right i probably shouldn't have said no risk but our point is that the twenty one other conditions of supervision adequately address that right is that right why is that so clear on this  record and this was he may have been a first time offender but the circumstances of this very offensive i under stand them correctly is that he had negotiated for the purchase of about one hundred forty thousand dollars worth of personal property stolen he done it in multiple locations he done it in the space of days and in in that context imposing a condition of if there is a reasonable basis on the probation officers part to think that there may be evidence to be found in a particular place he has the authority to just search why is that not reasonably related to the circumstances of this offense because in this affair and i do want to make the record very clear because the government i think is trying to muddy the waters  again we have to look as to whether the judge made a finding adequate to support this and judge guard if he said it may well be that this whole experience has been sufficiently unpleasant that specific deterrence is satisfied i am concerned about the need for general deterrence and he said mr andrew has no criminal record he suffers from mental health issues etc etc he made clear there's no finding here that the government can point to to say that this is necessary and especially given the second can consideration is it a greater deprivation deprivation of liberty than necessary the answer is yes given all of the other conditions including mental health treatment community service and most especially home visits and although i phrased it as home visits actually visits anywhere that the probation officer asks the probation officer has to be able to allowed to visit mr injury at home at work wherever that is more than adequate to ensure you suggesting that if it were not a condition requiring him to get mental health treatment that the search of the home on reasonable suspicion would become appropriate oh no no i'm not your honor i'm can i i don't really understand your argument that there are a lot of other conditions and therefore this one's unnecessary well i think the point is the panoply of other conditions the mental health treatment and presumably the alcohol and potentially drug treatments well is meant to mitigate against conditions which may lead him into a life of criminality to guard against any relapse these conditions are sufficient to do that was more than sufficient on record and not in every case that's not our argument what's more sufficient on this record is the condition that we objected to here to go into his home to search his body to go into his home where his wife and four adopt children live by the way they're all subject to this is well that's a greater deprivation of liberty than was reasonably necessary to search his home his body his car anywhere else under his control that's uncalled for we objected to it here it fails both tests of the thirty five eighty three d in al records show that he was involved in the planning for the home invasion in greenwich that led to the fencing of the coins and the diamonds the planning no and if i  misspeaking i'm sure the government will correct me but i'm aware of no evidence that he planned that i think the the point in the p s r he's generally aware that mr shaw was a burglar but i'm not aware of evidence and i'm sure i'll be corrected if i'm mistaken that he had any role in planning this invasion ok thank you good morning in may please the court my name is jason swore gold i'm an assistant united states attorney in the southern district of new york i represent the government on appeal and i represent the represented the government in the district court and says there were a couple of factual issues that were just addressed i think i'll just start with those if is sort of judge garda fees discussions about the seriousness of the offense and the fact that individuals who hold themselves out as fences for people who engage in stealing stolen property sort of incentivize them to continue to do it because they know that they have somebody who's going to be able to move the property for them and he did travel to it coconspirators basement to examine the jewelry so that's the second point your honor and that that is a and it's something that the government should have just corrected when probation sent out the p s r the as the court's aware the government sends a offense conduct and then probation takes it and writes it into the summary that's in the p s r c c one and are actually the same person and that actually i of the benefit of mr and her because if it was more than one person where he was going to multiple different locations even more obvious why judge guard if he did not abuse his discretion but even though it's still the same person here that he traveled to sh apartment to look at the jewelry to look at jewelry shaw is a person he's been dealing with for a decade that he knows is a thief that he's purchased stolen property from and in this specific offense conduct purchased two different types of stolen property one hundred thousand dollars in diamonds and the forty thousand dollars in rare gold coins seems to be a factual dispute between the two of you as to whether there is the record is clear that there had been other purchases from mr shaw in the past  so that there's more than just the offense conduct here it will help us understand that yes your honor and i think that so the paragraph that's in dispute here really in the p s r is paragraph nine which says that had worked at a pawn shop in new jersey then the new the next sentence and this is really what it comes down to for approximately ten years at injure knew a man named jerome shaw who at major knew as a burglar and who he would purchase stolen items from the very fair and plain reading of that there is no there's no time limit modifications on any particular parts of that sentence it's that he knew shaw had dealt with him for ten years and had purchased stolen property from him and it and if you look if you're honest look at the sentence in the sentencing transcript that was an undisputed fact throughout sentencing the government made that argument judge toward a fee in imposing sentence talked about the fact that mr and your head repeated dealings beyond the two particular purchases that are then specifically referenced in the in the offense conduct and and that was completely undisputed at the sentencing phase but even even if there's and these are undisputed facts judge or defeat found the facts in the p s r there were no objections from defense counsel and judge harvey is allowed to draw a reasonable inferences from those undisputed facts even if however even if it was really only those two instances there is still evidence in the record that mr edgar went to places other than the pawn shop to engage in criminal activity he went to purchase items from the defendants from home he went there to look at to look at jewelry that for evaluation purposes and the standard here is that one place or two places the same way zero he went just went to his home which is on long island the pawn shop was in new jersey so there is a place outside of the pawn shop where he is going to engage in part of this offense conduct and the standard here is that judge court if you would have had to abuse his discretion in finding that the search condition was reasonably related the abuse of discretion and reasonably related to it's not unlimited but it is a very deferential standard to have to take into account the privacy interests of the other inhabitants of the house well your honor and i think i may just pull up the the judgment in this case and part of the condition of supervised release is that an individual who has a diminished expectation of privacy when they're on supervised release is and it says right in the judgment and this is on this is in the appendix of page sixty five is supposed to inform the other residents of the home or the premises let's say it's a business that this individual is subject to this search condition and so there is the possibility that if probation has a reasonable basis to believe that there might be contraband in this location or that it might contain evidence of a violation of supervised release that by being in that same location with them there may come a time when that location is searched by probation basically they have a diminished but they're generally supposed to know the the onus is on the is on the supervisee to tell them because it is part of the condition of supervised release that he or she let these individuals know that probation may be showing up while you're porting i gather returned this to the district court if for no other reason would correct the written judgment that that's correct your honor the government's position is that the judgment of conviction should be affirmed there's the ministerial task of having the box checked that the mandatory drug testing condition is suspended and i would just point out that simply because it's being remembered for that ministerial task we're no way consenting or conceding that there should be any kind of additional procedures or any kind of fact finding ok and one final point that i want to make is the there's an argument made by mr and your regarding the other conditions of supervised release to keep him on the straight and narrow and in particular the home visit and in the reply brief there is an organ that the government doesn't even address the address these arguments which which of course we do because we do know that if a home visit was sufficient then there would never be the need for any other kind of any other kind of search condition but i do think it's important to keep in mind the differences between a home visit and a search condition a home visit is geared towards ensuring that for example a person lives where they say they live because they're supposed to maintain a particular residence and let pretrial know about it that they're living in a place that safe for them for example that somebody who's just been released probation doesn't show up and find that people in the house are doing drugs which may be the type of circumstance that you don't want a supervisor fresh out of a period of incarceration to be in that position to make sure that they're not that if they're moving from that they're not living with anybody that they're not supposed to be living with that they're not associating for example with a known felon  violating another specific type of supervised release condition and probation is authorized in that context to seize contraband that they find in plain view but the search condition it does go further than that but it's necessary for it to go further than that because by the very nature of the offense here the receipt and sale of stolen items unless a supervisee was keeping stolen items in plain view which is unlikely this would allow probation address your adversary's arguments today the judge guard if he just innit explain the reasons for his senate's adequately he said may well be the specific i know you didn't say specific deterrence is off the table but he said it may well be that specific deterrence is not an issue here and he makes a reference to general deterrence and that given that these are search conditions imposed on almost all aspects of of the life of mr and injure while he's on soup under supervision that that's not adequate explanation of the need for the for the condition well your honor is correct he didn't say that there was no need for specific deterrence but judge guard if he was entitle to fine and he credited the government's argument that for example  a six month sentence with six months of i believe community service he was entitled to impose to find that a period of supervised release that had a search condition could could accomplish the specific deterrence that perhaps just putting the stranger in in prison for a year or more would not necessarily accomplish in light of all of the personal circumstances that mr andrews counsel argued for and that were in the p s r about his health and his family and his lack of a prior criminal record as stated earlier based on a reasonable there has to be a reasonable basis for the search that's in the provision that that's a book that doesn't but that doesn't say that upon the search there is no evidence found but that there must be th the reason given by the court for this condition being lawful it's a just in case condition what if he starts buying stolen goods in his house what if he does something he's never done before that kind of speculation which is not supported by evidence in the record is not a basis to pose this condition especially given that it's a much greater deprivation of liberty than necessary given all the other restraints that he's already under we only object to this one