that they carry no we will fact you treat entire cases as if they never occurred and you do so across the law in all different areas and you do so especially here in federal court given that we are a court of over them in a jurisdiction so the question now is are there any consequences for the lack of jurisdiction over this underlying warrant i'd like to use my time and i know the court knows that our time is divvied up among different appellants i'd like to use my time to address three core points first  whether the good faith exception can even be applied at all to warrant that was issued without jurisdiction second i'd like to explain how this court's rule forty one jurisdiction does permit suppression despite what the government  s and the briefs and third i'd like to argue that even if the good exception could be seen as applying to a warrant that was issued without jurisdiction how the government cannot establish good faith case turning to the first  about why the good faith exception should not apply to a warrant issued without jurisdiction and legally there was never any warrant to uphold it was void from the beginning and leon by its very terms when they're talking about applying to good faith exception applies to warrants  invalidated meaning that they were valid for some period of time until someone along the line changed their mind but that didn't happen here the warrant was never any good and that matches up with the idea here and in federal court the jurisdiction is really citing to apply the good faith exception the difference there is that the underlying judge judges that issue those arrest warrants absolutely had the power to issue those arrest warrants there's no there's no argument otherwise so i thought what are we talking about  still applies right i understand so in both those cases there are the underlying judge always had the power to do what he or she did in that case here there was an order where the magistrate judge and we didn't have the ability to authorize this type  getting out there and the reason it would forward i think of the goals is because it would encourage the government very strongly to help the court be a guardian of the court's own jurisdiction and that's when you look at this case and if we get into actually applying potentially the good faith exception here you see that the government was was not acting in good faith because they did nothing to bring this glaring rule forty one the issue to the court's attention they didn't talk about it in that one application they didn't call the device unseemly that the mit a tracking device which they're belatedly doing now instead they said it was a search and seizure warrant for information they knew that there was that rules in the process have been amended and they knew that a similar program had been turned down earlier and  terms of you know when you look at when you're talking about did someone act reasonably is it says you look at the entire group of officers involved in drafting a warrant and gathering information and executing it and i think what the wreckage is that this is a very complex complex complicated for the language of herring which is that you look at all the circumstances the certainly it's different than just a cop who sees something and goes to his local state court judge this is a really complex really involved fairly complex judicial inquiries and i think some sometimes  well you know i think they would still need to show that you know it was they don't know where the locations are they would have to check all the different boxes in that part of the sex and then may very well involve you know bring in an agent and putting them under oath to giving testimony  what your position counsel would be that before the amendment there was no possible way to track those who are downloading and exchanging child porn on a server like tor and playpen right because there would be no way that you could actually physically satisfy any of those portions of forty one big that's correct the rule simply didn't allow for it at the point at that point so there are options there are limited options the government was in a tough spot but what they could do is they could try to investigate in other ways they had access to the entire database of your exchanges and posts that were on the web so i would hope that they could go through and try to drum and where people might be or make some good faith judgments about where people might be located but i'm just saying that the pr in terms of before being satisfied or get well right and i mean because none of those exceptions could have been satisfied i don't see how you know i'm less it's a tracking device you know put that aside for the moment that it's in that you're right that's not a tracking device in the person that probably was in the jurisdiction and cetera it really would be in no way for the government to conduct this kind of operation and also it's not a matter of they didn't go through the right process to achieve something that was achievable if they had done it correctly your position is the government shouldn't have been able to conduct this kind of investigation and child everything other than intentional misconduct by the government the errors well it was a good exception cover and this this really i think sharing really clarifies this well is it says good faith could not reasonably rely on the wording because they never brought it to our attention they didn't know whether she saw the issue or not so i think that that's the crucial distinction with regard to good faith i see that amount of time i think what's really important in this case is the knowledge of the agents and the team that were involved in operation pacifier that applied for the warrant at issue here we've seen and i just read it in my briefing that there was a similar search back in two thousand and fourteen that was ultimately denied a warrant from the southern district of texas and the reason why was because it exceeded the one that sort of rule forty one what we're talking about here is an agent  group of agents from the f b i that work together to to form this affidavit knowing that the territorial restrictions of parole forty one the knowledge and the experience of the agents at the time of this application i agents was much more than what they had just limited in their affidavit in their application for this warrant specifically they knew that this was a program that was going to be executed from virginia and that it would go glory they didn't requirement of the fourth amendment is to limit the discretion and promote the accountability of the office here officers executing the warrant in my case in particular in my my client's case in particular what we sought to do is to produce agent douglas macfarlane to inquire as to exactly what his knowledge was at the time of the application and why i think that's so important is because if he was aware of the district court proceedings and the department of justice is attempts to change the rule back in two thousand and thirteen fourteen and fifteen before this magistrate judge signed the warrant i think that is directly attributable to i would call it bad faith not good faith in this scenario finding a good party so aren't a part of the reason why i sought to produce one of these agencies because of the it was just a plethora of different rulings in the districts we've have been growing is that there is no rule forty one violation we have rulings that there is a rule forty one violation i think that the court and levin got really close to analyzing only on good faith and as an example our analysis here and really what i think that they missed  that the the agents that applied for the warrant had some knowledge they had twenty years of experience there was a croup of agents that work together to get to write this affidavit and these people are very very technically savvy they know exactly what they needed to do to exploit the usernames and the judge that you guys brought up an interesting point earlier as to that an alternative way to conduct this investigation and what we had at this time not darvocet already seized the server from naples florida they had the physical server themselves they had the list of information they also applied for and warrant to the messaging and with those two tools they had the ability to particularize a more specific warrant prior to the deployment of the and i t so what that means is that they had the ability to run the server communicate with people that were either posting see traffic on the server and then go after the particular people in this case but no means of identifying them no means of identifying but that's where the and i t comes and because they already possess the server itself so they can see the traffic on the server they can see into the name on the server itself and then that what they could do is they could apply for an id warrant for that particular person and that would get rid of that to general to have just one that broad sweeping warrant that covers the entire united states and new and we've subsequently found out other countries as  well i think that that's really the biggest point here is that the good faith analysis really needs to be applied to that the knowledge of the agents that were seeking the warrant at the time of seeking the warrant because of the law because of the district decisions and similar warrants and because of the unique language used in the applications to tailor this what i would call a computer virus and make it more similar to that of a g p s tracking device when there's obvious differences good morning honors may place the quiet my name is jonathan cohn i got here on behalf of the united states in these consolidated appeal so i'm happy to answer any of your questions of course but i would prefer to focus on the question of remedy and i think remedy is the surest ground according to the defendants the exclusionary rule applies to rule forty one violations but the good faith exception does not say that again they argue that the exclusionary rule applies to rule forty one violations but the good faith exception does not the officers who were relied on them and the court focused on their conduct in doing so and that the just of herring and evans gave us also a recent supreme court case mr owens raises an outrageous conduct argument and he sort of argues that this operation netted a handful of people who possessed child pornography it wasn't worth the downside risks involved in keeping this website up and running for two weeks those kinds of decisions are are best left to the executive branch and in addition i i will be filing a twenty  will call your attention to a district court decision from the eastern district of new york very recently decided which points out some of the very fruitful results of the investigation including  the apprehension of some hands on offenders and child pornography producers that's united states forces from the eastern district of new york twenty seven so the cost benefit jurisdiction as a lot of meanings there's subject matter jurisdiction and territorial jurisdiction we would say that that that rule forty one is more in the nature of a venue provision oil jurisdiction i'm not saying it's to be lightly disregarded what the agents did in this case was they asked for a warrant in the district that had the most connection to the investigation  problem there there's no basis for suppression under there's no basis certainly not under the leon line of cases concerning good faith  my pony's did talk a little bit about the sort of state of play in twenty fifteen when the agents proceeded with this  which were traped really only data about the person's location and again consistent with the government's view that this is a tracking device it tells you where the found it goes after visiting the eastern district of virginia  and some other much more invasive items well beyond the seven specific items that are in attachment b in this case  o just really to conclude on behalf of the government that suppression is an extreme sanction for flagrant abuses of the constitution it's a traditionally created exception  and it doesn't apply when deterrence is questionable as it certainly would be here especially in light of the amendments to rule forty one which clarified that this type of technique may be used there is no will there's nothing to deter going forward thank you anderson when when i look at this situation i listen to these arguments today i look at the fact that the exclusionary rule exist for a reason and it exists because every once in a while there of the truth the exclusionary rule should apply and good faith should not end here what did they do they completely misled this magistrate into issuing this warrant they buried what they were going to do they didn't advise the magistrate that they were going to send out an extraterritorial signal there was going to go into people's homes and search their computers and gather information it's exactly what the exclusionary rule is designed to guard against and to say now well the rules been amended so it's no longer a problem doesn't mean it wasn't a problem before if someone slips on the ice outside and  down salt i don't say well they you know the fact they thought there's no longer a problem because now i've thrown down salt there's a reason why they changed the role they went to a judge who had no power to do this computers when i found it in the united states i respectfully disagree it did not tell the magistrate that the n i t was going to be sent to the computers it made it seem as if computers are going to log on to this server in virginia and the search was going to take place in virginia and it's very carefully worded like that it never describes that a signal is going to be transmitted to these computers that software is going to be installed on these computers in these remote locations and that the data it's then going to gather the information and send it back it was very very carefully drafted to avoid exactly that reading and the government in their pleadings say well a logical inference the magistrate should have known because it was a logical inference now when you're asking someone to issue a warrant you should explain to them what search is going to take place where the search is going to take place and so forth and know where within this complaint does it explain those factors the other fact when that when the good faith and the magistrate known what was going on they very likely was that i don't have this authority you need to go see a different judge they went and saw a different judge to get one of the want and yet with the second one issued t same day they went to the magistrate judge why didn't they ask the district court to issue the second want why didn't they ask the district i don't know the answer to that it's just a question that did that arises of why did they go to this  magistrate judge when they didn't go to the magistrate judge for the first one and i don't know but i think that the logical inference from that is that something happened when the first warrant was issued and they thought they couldn't go back to the district court so they sought someone else information that the government said it was the government didn't explain how the technology works that's that's exactly the point the government didn't say that we are going to have this device that is going to go out across the country or across the world and do this they said people are going to log onto our server if i do a search a google search in theory i'm logging onto a google sort of or wherever it's located to do that search in this case that was the impression that the government gave we have a computer we seized in florida we put the computer in virginia people are going to seek out this computer when they search this computer and they search for information gather the information that's what the want applications that that was intentionally purposely misleading and suppression is the proper remedy in this case now that would stand in the charges now was standing out successful the investigation