specifically in the absence of an independent investigation statements made reliance on clinicians of others are insufficient to establish probable cause for a search warrant issue where else i will also speak about mr dunning having a reasonable expectation of excuse me we call this morning reason what expect a show of privacy in his files on his home computer as the government cannot prove distribution during sentencing or any other phase of his case and that the defendant also took measures to prevent file sharing as well as the unconstitutionality applying it and you can possess it if you made it that would be the rare instance i suppose that you could distinguish between possession and receipt but i think it would be quite obvious in that circumstance versus a circumstance where the defendant did not create the actual child pornography no claim about th possession or receipt without one or the other so it would seem as far as the theory is concerned that's what our position on the situation is that it allows the prosecutor to charge either or when in reality either or is not there both the same and therefore charging with possession which is a lesser included of the offensive receipt it would allow for a downward departure don't know that the facts are spot on but between the possession and receipt of basically the court is spoke to the fact that in the event of vagueness it fails to give notice to an ordinary individual what kind of conduct is prohibited and may authorize and encourage arbitrary and forcemeat which the possession statute come after the receipt statute and you know i was on the case which dealt with whether one was a lesser included offense of the other which it was but if you look at the legislative history there's a reason for why they passed that different statute now it's not clear why they would put a different minimum on it but the reason i guess was it was hard for prosecutors to show receipt because they would say you haven't proved i reseated received it you only prove that i advocate and i've seen because of the very logic you would logically say well if you have it you received it because of the theoretical possibility that you made it yourself they'd have a difficult time or a more difficult time proving it so congress as we don't care whether they received it if they possess it and i asked the statute isn't that how the statutes got so i understand the government's argument the it's not that irrational to have both statutes and it might be that since you have to prove less for one slightly for it than for the other that you might have a different punishment attached to when that being the case and you have again the argument i mean it's not like there's no argument at all well i would say that is i would say that if the government intended for there to be no showing of receipt that they would perhaps not have even made a distinction in yes which if i was a prosecutor and i am too objective lee prosecuting i would probably end up charging with receipt vs possession due to the fact the theory that this was distributed which gets bored is that it's downloaded somebody well if the the argument the upward departure in a sentencing guideline should not be applied in this case not only there mr that is there will always distribute automatically if you download the the pornography yes it is the government's theory that it should automatically apply because it implies by being on a peer to peer network that whether or not you are actually sharing the file is irrelevant however and i would argue to the contrary that the distribution situation in this case first of all was not acknowledged either by the defendant or proven by the court in as a matter of fact in present report states which i have stated in my brief that it was actually pointed out that mr dunning did not and tipped measures to try to not share files on the peer to peer network second of all the allegation that he was five to file sharing is just is merely that it's an allegation the expert that the government presented at sentencing basically levy added to the fact that the reason why there were no numbers showing in the column on the report for shared files is because in his opinion there wasn't any files being through the internet here is here what happened here are is that no peer to peer network was ever accessed by the investigating officer ever wants a third party program was actually used to access information from the internet that was allegedly being shown by this software the officer never performed an independent investigation he never actually they determine that's what what was happening but yes in theory the public file sharing network would supposedly show that these files are being shared now you would have to know a little bit more about the file the hash value of the file the keywords that you're looking for to establish that room after you know any password you would have to know and i p address that would that is not public and  the peer to peer network file sharing i mean you basically get on there and anybody can type in a keyword and can find any file that's being shared and yes his files would have shown that way but with the officer in this case did is took through a third party software basically went on their push search and all this information that wouldn't have normally come up on a regular search engine like a peer to peer network an ip address that hash values for these files that he actually had stored in that side the software that would have told him hey this is child pornography there's a lot of information that the program was providing to the officer that would not have been provided to a lay person in the same circumstance unconstitutional and perhaps be rewritten but aside from being rewritten i suppose that it would be a downward departure in the months that he received versus  higher bracket of months what about distribution would have also would also have done the same thing it would have brought down it would allow for a downward departure in sentencing so  my argument is that he didn't perform an independent get investigation or elide solely on the software to give him the answers to his question john which is now a difference really than somebody telling a police officer hey my neighbor doing drugs and without doing anything else performs a search based on that statement that's basically what has happened in this case the software told the officer what to tell the magistrate magistrate issued a warrant officer never conducted an independent investigation of the peer to peer network and never free you know never verify the information that was being fed to him by this program and the reason why that's important is because the affidavit by the developer of the software as well as the manual that this that this investigating officer was supposedly trained by both say that you cannot authenticate this information it was only developed to provide leads and it was only developed to assist in establishing probable cause here that is not what happened probable cause was established based solely on what the software told the investigating officer thank you counsel i don't recall if you said you could reserve rebuttal time i apologize i did not but i did reserve three minutes  distribution enhanced this idea that there is no independent investigation that detective marlowe did before going for a warrant is subjectively falls what he address local to his jurisdiction as one that had been logged sharing child pornography but he had to where did he get that happy address from the information in this child protective i don't quite follow exactly how he came up with the information that led him to look at this man computer shirt and i think we can answer that i don't just kind of doing a quick overview of how the software works this child protection system is a web site that law enforcement investigators who  trained in how to use it logon to that website has software running on its servers that is running on the in this case the file sharing network and twenty four seventh's it is sending out searches for known child pornography materials and keywords related to child pornography when it detects an ip address sharing files that match either the hash value of norm known pornography or the match one of those keyword seen sharing child pornography then what he can do is that website is public information no that web site is restricted use to law enforcement officers who have been trained in how to use it but it isn't all it is doing is aggregating publicly available information detectives in this case could have sat there and done all of these searches again to see if there was anybody in his area sharing this all this does is it automates that process so one detective see get logs on to this web site and seize private information it is publicly in from it is publicly available information that has been aggregated in such a way that is only available to the trained investigators so anybody can get on and do the search anybody at their computer could do a search on this file sharing network and have mr dunning's ip come up as an ip sharing child pornography all the c p s software does is that it automates that search process so it's any it's information that the public has complete access to but the aggregation of that information is the is what is private about this and the nature of the searches  being searched for yes but all of these law enforcement investigators have local databases of these files that they have compiled from their own investigations and they could use so when detective logs into the system this is where the independent investigation comes in he is logging into the system it is identifying i p s that have been seen that have been logged sharing child pornography it gives him a list of all the files and he can download that to a program on his machine now and that allows him to check are these files actually child pornography or are these mistakes you know is the database is the database completely wrong he can actually go through and check each file against files that he has locally and if you look at the warrant in this case he says he did that he checked the  information that he got from c p s against his local law enforcement database he actually viewed the files in question and determined that they were in fact child pornography he then investigated whether the ip address is a actually one that would have provided that address to a customer he subpoenaed that i asked p got the customers information that was mr dunning he verified he went to mr dunning's address he verified that based on the motor vehicle registration of the cars well i think that judge rogers touched on that earlier with the idea that possession is a lesser included offense in receipt but it doesn't they aren't the same thing receipt is the act of receiving in a way that you can't pull them apart respectfully i disagree i think that how can you pull apart of that if i produced them so well that is one  way but also it just in terms of the what we're talking about sir no it is not but i think it comes down to an issue of the burden of proof for the united states weak if if there is a search warrant on an individual's computer and they find child pornography but can't prove but have no idea how it got there or no idea you know other than that the person in question took some action you know intentionally put it there then there is no receipt i'm certain there is no ability to bring out a receipt charge it is merely a possession claim if on the other hand you can pinpoint happens you could never see say that again if if investigators were to execute a search warrant and just find child sure and as i understand it when the statute was amended to include possession as a separate offense it was because the government was happened was being required to identify the actual act receipt require proof of the source no it does not require proof of the source but it does require you to show an act of receipt essentially and merely possessing the implication is downloaded these files the defense would be yeah but i didn't receive that came to my computer but nothing i did i think the defense will also be i didn't possess it i didn't know it was there but i wasn't you know i did not intentionally put it there i don't you know i think you have a number defense in that case congress is right about though was that you had situations where the defendant knew it was there but there was no proof of how it got there that's correct and so the prosecutors were having trouble i don't know whether they had cases or court of appeals cases or whatever there was there was there were people that were more difficult to prosecute actually manufacture it yourself unless you have received it i mean unless that english language you alice in wonderland making up what words mean but i do not understand how someone can possess something and never have received it i think we have to to rely on the idea here that congress was addressing this perceived hole in the receipt statute that judge rogers is referring to in that case so to cover situations where a receipt just simply cannot be proved well we can prove that you possessed it and that is a separate crime but i think the point there is that having those two statutes side by side doesn't make either of them unconstitutionally vague they both clearly define what conduct is made  a problem but it's usually irrationality due process problem in my mind and i think there can be a double jeopardy problem and this court has recognized that before that with regard to if you are proving receipt and position as to the same instance of child pornography but that's not the case here and in fact the possession charge in this case was dropped when mr dunning pleaded guilty to the receipt charge one of the things that i would like to make sure but here is this idea that for the enhancement the distribution has been to apply that the distribution had to be proven beyond a reasonable doubt or proven by a jury and i believe that argument comes from the cunningham line of cases that if you are sentencing if a district judge wants to sentence above the maximum sentence they have to prove a jury has to find facts that support that the other reasonable do our don't require a jury finding a judge is able to find those facts based on a preponderance of the evidence because of the idea that the advisory or that the guidelines are visor in the book or so that argument just to peer file sharing software and the reason for that is always yes and the reason for the case in peer to peer unless unless you have a driver or the nature of the software shows is rare because this is where the garment mill yes the way that peer to peer file sharing software works is that you do a search for a file when you find it a user anywhere you that need to search for a file let's take it to music too but you know like the old napster networks you do a search for a song and you find ok well here's the song you double click it it starts downloading to your computer it is pulling parts of that file from different users all over the internet because that's how it does it so fast and that's how it make sure it gets a complete file so it pulls chunks of that file from all sorts of different users as you download those chunks people are then able to download those chunks from you it doesn't require that you have a complete file for people to download the way the software works is that it breaks all these i think that goes to the the intent behind these statutes and setting that both be mandatory minimum and also the way the the sense of guidelines escalate based on various factors but i think all of that goes to the idea that what drives creation of child pornography is the market for child pornography and if we can eliminate the market for child pornography by harshly punishing people who are downloading these files who are creating the market for these files we can actually get to the source of the problem this is addiction i understand there are arguments to be made there and i wouldn't a surly disagree with them but it is also one that congress has decided is harshly punished i mean just as drug addiction is harshly punishable frankly thank you counsel thank y first i would say that the the analogy to kyle in our situation is i want to bring it up because basically there was an expectation of privacy in my client's files he took he took measures to make sure these files were not being distributed he he adamant that he did not distribute these files he did not plead to distribution in this case that being said there's a reasonable expectation in your home computer as is cited in guest and wilson inside of my brief furthermore the the acts that mr the detective marlowe to to find probable cause for his so search warrant don't comply with the c p s manual you supposedly trained with and they don't comply with the developer of the software's theory on why this software was developed that being said i also want to address schumacher because the government relies heavily on it so does judge actions in his opinion when he denied our motion to suppress a stark difference in schumacher being that we don't know whether that or not there was an independent investigation conducted and i bring that to your attention because the first circuit six circuit the eighth circuit and the fifth circuit have all stablished opinions on the situation however in every single one of those circuits an independent investigation was performed there was something to hang your hat on the probable cause was a stablished by the officers authentic cation of the program he was or was not using or the officer was directly using a peer to peer network sharing system he was on what you and i could be on and as far as the program that the government is speaking to you cannot access someone's ip address from a file sharing network you can access it but you don't have that number you can take that number down to the local cable company and ask them for the address you know men match it up with his house it's at you cannot you know look at these hash tag numbers and credit cross reference them with a program that you don't have access to this officer did not cross reference anything he took cash values that were taken from a c p s software system and he cross reference that them with hash values that were supposedly seen by the same software on my client's computer without ever once getting onto each donkey and saying well you know what i'm going to check and see if this program in software is telling me something correct i'm going to check and see to make sure that these hundred seventy six notable files are actually available for download on  donkey which he could have easily accessed like anyone else in the public he chose not to and therefore did not establish probable cause to bring to for search warrant issue and good faith reliance on something that you mis that's just like saying why i broke the rules to get there but now i'm going to blame somebody else as to why i broke the rules so they can counsel you're welcome be submitted