morning i am diane smothers from the federal defender in the western district of tennessee representing mr andrew morehead as your honour's or aware this is i suppose what could be called to locate track down and identify various persons both domestically and potentially internationally that were involved in either possessing or distributing child pornography or you said this is another an i t case as your argument succeeded in any other of the courts that as the argument has been presented to them i would state your honor at this point  not at the not at this level and as your honour's are aware there are several matters that have several cases that have proceeded up on petitions for cert some of those more recently have been denied we reference some of those in our filings the united states versus ver dana maybe so if we rule in your favor will we will be created a conflict with how many circuits oh i didn't write the total number down virtually every other  post i guess post searches is maybe a better way to say it these specific facts which are alleged i'm in mr moore his case and have been alleged in in the other cases that have gone through the district or appellate levels in other circuits software that was put onto a machine in virginia those pacific facts we have to agree are unlikely to occur again and require judicial review except for cases which may be in the pipeline that certainly we are not aware of the government may be aware of other prosecutions that would be forthcoming from this search if you will from this device but in the future since the rule impacts the appellant as it is it has always been the appellant's ability or the suspects ability if you will to attack the government's use of that material is is very unlikely to arise again it would arise from historical case so we don't need to be quite as concerned with the issue of deterring future misconduct of law or from the cases seem to focus on that from the supreme court in terms of afaik the only and exclusionary rule from a defense practitioner standpoint is one of those rules it's almost like harmless error as we encounter it in our practice it's a rule that at times feels as if or seems as if it has swallowed up the exception has swallowed up the rule and that may be for a variety of reasons but afaik in this particular case his case and it would apply in this instance again speaking in the future i certainly couldn't say but one of the court's look to what is the exclusionary rule meant to address or what are we trying to avoid or correct but it is reference to recurring or systemic negligence and i suppose that in this case it could be looked at in one of two ways we're currying obviously could be multiple acts over time whatever those acts might be either police officer stopping people without probable cause or some of the things that come to mind i would offer that in this particular case and it would it it's a limited holding out don't indicate i don't anticipate a future wave of cases in relation to this specific issue but in this particular case the government took this action got the warrant and then acted upon it downloaded or attached if you will the means of identifying people and again we we respectfully disagree with that with our courts finding or the assessment that this would be equivalent to a tracking device i think there's a separate warrant provision for that i think that really really i guess you know i'm a little confused about several things with respect to your argument here number one what exactly is so bad about the government's conduct here i mean they were very transparent in the warrant in the in the af davit in support about exactly what they were going to be doing the united states magistrate judge unquestionably a neutral jurist you that concluded that it did satisfy were did fall within one of the venue provisions of the forty want in granted the warrant i mean what what is so agreed yours about that conduct that we ought to take inflict the societal penalty of letting the defendants in these cases go through what was so bad about what the government did here as we indicated in our in our filing  honor i think a concern that that we have have raised and have have mentioned is that in that particular district at least there are multiple is a large history there are multiple district that that is a substantial i would offer part of their workload but i think in this if and this in there's a founding that would have to be made if the court finds that there was negligence or wrongful conduct on behalf of the agents that's going to find out what is it i think it would have to hinge on or spring from if you will the knowledge that the government had because of the wording at problem jumps justice criminal division yes or that and it's it's call that letter was sent by the head of the criminal division yes or i mean that's a very different person and a very different across of not only the criminal divisions concerned but also the reasons for him at the agent therefore should have perhaps without legal training should have concluded that indeed this was not a proper venue  location i mean isn't that pretty attenuated well out and again your honor i act concur there is not and i don't think that there would be the ability to show a direct line between the person as you indicated the chief for the head making that request the rule that the record change was requested in fact was later made shows that at the time this was issued it did not in compas that rolled in that that wide if you will reach me i think i think there's a very good argument for that  but if we're going if we were to say in this case that the fact that the criminal division came to the rules committee the house for change means that every action contrary to that took deterred to that interpretation of a rule prior to the problem a geisha of the request to change is invalid i mean we're going to be we want to talk about the turns we're going to be deterring the department of justice or anybody  from coming to the rules committee and asking for changes to clarify the criminal rules because of you know this very argument that all of that means everything that happened before it was obviously invalid  know the government ought to be punished and that would be a bad turn of decisions i would agree is on a societal basis that my will be true but i think the request and ultimately what happened i would i would counsel that more in terms of not a clarification of an existing rule but a request to to change a rule which is certainly not i'll be wrong about that which is which is not improper i would agree with you on it i guess i don't mean to get anyone's way  so rule forty one's a venue provision i mean the restylane or the amended rule makes that clear it says venue that is the title of the rules so we have a violation of a venue provision in the criminal rules that direct that that describes which courthouse the government must go to in order to seek a warrant has nothing to do with the constitutional requirements particular your problem cause or whatever so the government went to the wrong court house why is that a how does that turn into a constitutional violation that would support the application of the exclusionary rule i thought the exclusionary rules like you know you violate the fourth amendment that sirius is at serious business that's more serious and violating a venue provision in the criminal rules so i mean how do why would we even be talking about the exclusionary rule with regard to a venue provision in the criminal rules well i would offer that while it is cash is a venue provision in this case and i and your authors may differ with me but i think in this case that it is a legitimate finding where it would be a legitimate finding to say that this that this did arise to a constitutional violation that still doesn't get a start on the claims i don't understand how a violation of a venue provision turns into a constitutional violation of constitutional probable cause which they had particularities which the application had i can't think of a fourth amendment requirement that this application did not have are you aware of any fourth amendment requirement that the application didn't well your honor our position again is that i and i don't know how it sort of you know transforms i mean we have section six thirty six in the background i personally don't think there was a violation of that respectfully i think gorsuch is wrong on that point we don't disagree it that's one thing so i don't i don't know i mean i don't mean to take up your time but i just don't see how it becomes a constitutional violation where your honor the and mr morehead of course as any individual defendant would looks at this from the impact of the effect on him individually and it does the government's actions act in two ways they act globally if you will and in this instance it could have been globally because they had no idea where those persons if you will those those targets i would say would be found they could be in lithuania they could be in mexico they could be in ohio there's there was no way to know so that the sweep of the request is is to the four corners of the earth literally with computer situations as they are now and i would respectfully say although historically i think this would not have been a valid argument or something that would factually be supportable if we look at the question of negligence again i don't i think th being detached in all those that there's no argument about that but i think if we're looking to is there a possible grounds for suppression something to be deterred enough i'm sorry my time is up  something to be deterred which again in this specific factual patterns on likely to occur again in light of the amendment that if we look at the government's position in these particular cases child pornography cases  valving computer data if you will that my experience has been the government's position in regards to a defendant every time a defendant touches if you will download accesses views any of this data any time the data comes to a person's machine to put it in layman's terms that's considered off and if that is correct then it may also be correct that the every time the government reached out in touch someone's computer with this one warrant with the one sending and then waited to see what came back every time a computer was touched if that is a recurring act then it's possible in this specific incident which again is on likely to occur in the future that the government's conduct in that was so broad sweeping that it could be called recurring that in this particular limited instance the recurring conduct or negligence is simply the band's number mr morehead being one of them the vast number of hits if you will that the government got from one what we allege was an illegal action  suppression in this case it's not justified because it does not deter future misconduct the agents acted objective leave reasonably in relying on the warrant that was issued by the  six thirty six which prescribes the territorial jurisdictions of the magistrates came about in an aero when there was very little intangible property this pertains to intangible items it's important to note that the technology changes much faster than the law and faster than the rules it doesn't mean that the rules we have don't cover it it means that the rules we have could be more specific to cover these new circumstances and the government argues that in this particular case that's exactly what we have the criminal division of the department of justice may want to suggest things that cover new sets of circumstances that doesn't mean there's not a place for in what we currently have i mean  think you probably want to make an argument that the tracking device thing is not frivolous but i mean you know if we read the prior rule forty one in the ordinary way i'm very hard information that is moving which does constitute property could be could fall under that that's not an under reasonable interpretation and so in presenting in front but it's not crazy correct correct your  honor and we would agree it is not a tracking device should not have been applied for under a tracking device warrant that's the case but it's not unreasonable to think a magistrate might understand that or might think that magistrates here civil criminal matters there are pro choice with countless types of information and a positions each day it's their job to look at it and make the call that's why bettering themselves but as this issue with percolated up to the exclusionary rule do we look at the magistrate's thinking or do we look at the officers thinking i think that both are valid i think that both are important but ultimately the magistrate or rules to deter misconduct by the police officers i thought that was directed to the police i was so we'd look at what a reasonable objective police officer would have would have viewed this and whether a reasonable objective police officer would have known that the war was issued without basis and i think it isn't that what we do it is your honor but i think in this set of circumstances it's very reasonable to think that the officers acted appropriately they did what they always do and the officers have austrade in the  information they were specific they didn't hide the fact that they were seeking to search computers where ever located the magistrate saw that information and by explaining the technology and how it worked it made sense the magistrate made an independent determination that information was there and if she had decided that was inappropriate she would have rejected the want are there are other cases and i think cases kicking around that are circuit decides this one there have been many at the district court level i do not know that any have been appealed before you're before the sixth circuit i believe that this is the first panel to consider this argument and the cases and my question is of seven other circuits have ruled on this and we're going to issue a decision one way or the other and whether it should be published if there are there are numerous other cases that are pending that are circuit the district judges may need some president on this issue  should we publish our decision or the other the government's position is yes i know for a fact that i have another peal pending it's in the briefing stages and it is based on the same warrant is also from the western district of tennessee and it is also based on the will these issues come up again in the future with the adjustment to rule forty one i don't believe that this particular set of circumstances will come up in the future however we're constantly faced with trying to fit new technology into the rules as they currently exist and in this case i think not quite being familiar an understanding of the technology or it or fully understanding how the technology works it confused issues a lot you know in this case those who ultimately were charged reached into virginia it's been called a virtual trip and i know some courts have rejected that argument but but for their accessing not child pornography website the net would not have been deployed to their computers they had to go into the website log in with their identity and password go to a forum and then activate something on the form then whatever they requested went back to their computer along with this source code the source code that was narrowly tailored to only collect their ip address the user operating software that they were using and whether it was under a particular user in a home like that's computer or john's computer and the mac address which identifies which particular device accessing an ip address is the one that received the information we understand that there is a privacy interest at stake but so far i don't believe a court has ruled that there's a privacy interest at stake in the ip address and the ip address is what was used to locate the person accessing the child pornography website and then we got substantive warrants in those districts to search those computers and to search those homes to seek information and that information is what the prosecutions were based upon they were based on the net you have a response to the defense's characterization of the putative violation here as constitutional i believe the courts have determined it was a constitutional violation i don't understand it i mean can you explain it to me i don't get it i don't get it i wonder somebody skipping a step it's like you know there's a violation of something in a criminal case and all of a sudden we're just talking about their school rule as on the computer it did a very limited search right now it's a start that information and i guess that is the concert underpinnings but it it's not the requirements of the fourth amendment that we're lacking per this argument i would agree was a venue provision you had a totally lawful basis to obtain a warrant all the fourth amendment boxes were checked that went to the wrong courthouse they didn't know where the right courthouse was that's where the rule got  exam but i just i just question that it's a constitutional violation that we ought to take for granted that ok now we have to do the exclusionary i mean i  just i guess i'm asking you do you want to make an argument that it isn't a constitutional violation that we ought not to be immediately jumping to the question of whether the exclusionary rule applies i think for us because see that seems to be where the argument is happening presuming that the warrant was not an issue presuming that it was a constitutional violation here is where we're getting into the nuts and bolts of things do i agree that it was a constitutional violation i don't know but i do know that most courts have found that it was  i just i don't know i mean you know when we start assuming things then people think those things are true and sort of just i don't i don't see it you know sort of logically i just i'm not saying it's inconceivable but i just don't see how a venue violation becomes you know fourth amendment violated i think judge catholic is probably right but i think you forfeited the issue not argue it you may have you have you know that is a very good point so i will on the afghan government argue that it's not a constitutional violation it's not briefs in our brief we chose to address the things that were most most pertinent to this case and respond to appellate argument but truthfully we did follow the requirements the government got a warrant it carefully considered the technology carefully considered its options if they did not apply in virginia where the server was located and where the users of pacifiers of the playpen website this is operation pacifier i misspoke of the play website were reaching in to obtain information then where would the warrant issue and the warrant can't issue in a random district where a computer might be so given the alternatives this was a very brazen of course of action that was carefully thought out and had the just in as a final matter now would i concur good or bad regardless of which way the court goes with your decision today i think  i would concur that a published decision is probably needed there's there is a tide if you will it may not be an overwhelming tide but there is a growing number again of circuits that have ruled contrary to our position and we certainly understand that is apparently a first impression here i know in our district and we practice in the same courts i myself do not have any other cases in the pipeline there are some in the memphis division and there may be others that have not yet been prosecuted that that we are yet to learn of but i think that guidance is needed on this certainly up to the lower court level i would concur and i think it is would be a correct finding that this this is not a tracking device under under any stretch of the imagination as those things are thought of as this function and i would offer that again this isn't maybe a typical situation where the government is acting in virginia but the only reason they're in virginia is because the agency the f b i took the server to virginia they could have taken the server to montana or to new york they could have taken it anywhere because of other considerations as far as the security of it in the in the use of it if you will facilities they may have had on the ground to do that it was taken to virginia that's now where it was it was in another state originally so we get into that i think and we would strongly disagree with with any finding  that and again to use the term and it's not miss arlen's term for her brief but the virtual trip we would strongly dispute that any person by either clicking on a website or going to a blog or a bulletin board in their computer what ever that thing might be that bad touching it looking at it even typing in an address creating an account that i have somehow gone to that place that the defendant issue of constitutional violation that's what you're like just very very quickly like and thirty seconds is that i guess i'm really struggling with the constitutional violation issue as well is that really best case authority you that there's a constitutional violation there but i think our position isn't and has to be that the it is different factually from a judge that does not have any authority a retired to mean he if we're talking six thirty six he had authority to issue the warrant in the eastern district of virginia had to issue from there yes or i wouldn't i do not think that that section limits the scope of the effects of th i mean rule forty one b two if i recall there are other provisions of rule forty one that allow extraterritorial a fax of a warrant you can go get stuff in other districts nobody has ever said professor but again it's our position that that is not what was requested here and i think that's the largely the basis for the rule amendment which precludes this issue in the future ok thank you for your healthy thank you very much i want to thank  counsel interesting issue obviously you know it's tough for rules to keep up with technology which is advancing obviously a rapid pace but we appreciate your briefing and your arguments today the case will be submitted and we'll have a decision for you and in due course thank you very much