yes my name is simon henderson and i represent rain with gamma politics for my voice and i've got a long running call and i hope it'll last for the ten minutes i have here i'd like to reserve to those minutes for a bottle and my plan is to focus my arguments on the third  think i mean in some ways i think it's pretty simple there are huge privacy concerns as you look at cell phones and computer searches the supreme court said that a search of a phone can reveal more about a private life than even the most you know court must make a factual finding stablish ing some nexus between computer use and the goals upon it and presumably if you or or your client's counsel below had objected there might well have been the findings and there was no objection so this is just plain  plain there yeah so it just seems like you're kind of hard pressed to complain about findings that weren't made when you didn't pass for them to be made i mean yes which is true in all planar cases i mean that it's something that ideally should have been resolved below in the it should have been given that are well today yeah i guess let me just clarify my point there i could see i guess if you were saying in an absolute sense that this condition is just invalid on its face right as opposed to well it could be valid but only if certain findings were made that that's to me is the difference i do understand your honor i would say this i mean this is i think this serves a substantive purpose that this this nexus requirement because it you know this so has seen fit to decide that it is ok to impose computer conditions computer search conditions i personally think there should be more protections but what this this nexus requirement does do is at least make the district court sit up and take notice before doing it you know say ok i'm doing something really serious here do i have you know do i have the grounds to do that but instead of just including you know among a list of proposed conditions from probation and just just throwing it in with the others i agree but i don't there's nothing you've said i disagree with it just seems to me though that on the face of the condition that the district court had before it the nexus was present because because this was not just a suspicion in the search condition there were actually two requirement that needed to be met before the search could occur a number one the probation officer had to have reasonable suspicion that what was at the computer itself or know that your client had violated a condition of probation and to the purposes of probation and what could be more central to the purposes of probation and making sure that your client is complying with the conditions but again it's basically a factual finding of facts that appear at sentencing not new facts that are going to develop later saying that this the sort of conditions necessary and if i could just say that reasonable suspicion isn't the protection that it could be i mean i would compare this to a search warrant you should search warrant to search computers that search warrant has to have  to to make sure that the files being only the files containing information are being searched and not that it doesn't turn into a general rummaging there's no protocols here so really you know these you know this is a far more  defendant friendly conditioned and some of the ones i've seen all say that i mean your client has at least a layer of protection here that a lot of these suspicion the search conditions that are imposed on probationers don't contain i don't know i don't think you could have a suspicion a search noted that that was unconstitutionally vague along three dimensions first it was vague as to the sources of information that could be used whether this court singled out personal history and characteristics as having no clear meaning what would be what would have to be by telling you the other two dimensions and then getting to so whether i think it can be cured the second dimension that it was unconstitutional on the is what risks were included whether this is just new criminal behavior also risks of being unreliable employee or an unreliable romantic cheating at scrabble and it was also vegas to what people had to be notified how attenuated whether this is you know someone who's at immediate risk or you know people you meet on the street or in businesses i don't think that i mean i guess i have two answers to to your question one is i don't i don't really think that it can be cured i think that this is not a good subject for a standard condition this is extremely ambitious it's trying to cover all risks from all defendants i don't think you can do that in a in a couple lines i tried to write out a condition that would do it and i got the fourteen lines and i stop and think i'll be able to let me help you out wasn't the concern in  a defendant having notice about what constitutes a violation and here where the condition requires the probation officer to notify the defendant about what constitutes a violation in advance isn't the evans concern over notice satisfied here and along with the change in the language which includes the words specific which i know you want to have happen and answer that and also comment on the case that was just provided by the government before your time runs out ok thank you so three things there first in terms of the court's concerns and haven't seen it was not just notice it was determined guidance to the probation officer this court made very clear that these these are not policy decisions for the probation officer making these a policy decision for the court to be making whether whether we're talking about just criminal risks or other kinds of risks how attenuated the  the rest should be before you notify somebody what sources you can look at can the probation officer just act on a hunch say you know you look like the kind of guy who might you know steal a bikes or go tell everyone with a bike that you're going to steal bikes those are positions of the probation officer those decisions for the court can't can make sure you have time to address all of the points but just on that one yeah i seem to recall that evans though cited more or less with approval the  deal with this in a way consistent with this opinion it didn't wish for the other ones that said hey they got it right do that with this one they didn't say that well listen are true that there has to be some discretion given to the probation officer to foretell an event that's going to happen perhaps in the future you've got to give some discretion and that the court will be there too if they do act on a hunch as opposed to something else to restrict that hunch so some discretion is necessary isn't it well this is this is total discretion there's no limits of anything your honor brought up the specific specific doesn't mean anything if i called my wife and told her please pick me up a specific ingredient for dinner from the grocery store well that's what you would say that makes no sense what what ingredient you want so this is no there's no cabin ing of the and if you told your lunch meat you're going to get your choice of lunch meat i suppose as opposed to hammer turkey or whatever yes i mean if if you and then on it come up with something more that that is actually more specific and it's not just the word specific then we might be getting somewhere but i had to get back to judge to she was questioned about what you know what we should do here i think it probably most of the issues that are going to come up that this would reasonably be reasonably necessary for are going to be you know if you're a fraudster selling memorabilia counterfeit memorabilia and you want to go back to that business and you know that the court can tell you looking need to tell the people you're going to sell to if you're a sex offender and you want to hang out with children there's  there's a condition out there that says your view is that this cannot be a standard condition it has to be tailored to the individual case not at this breath i would say i will say that i went and looked in to see what they didn't censor because the seventh circuit got us into this mess in the first place and some of the district courts there seem to just like that completely there's no more standard condition the northern district of illinois came up with a sort of broken into three very narrow and clear conditions that with check boxes and the cork the check which ones would apply so for instance they say your employer is usual out the probation officer to notify your employer any person with whom you conduct business about any reasonably foreseeable risk you posed based on your conduct in this offense or your criminal history for your employer about any reasonably foreseeable risk you pose based on your history of substance abuse if you submit a positive drug test any person with whom you're dating or in an engagement relationship about any reasonable foreseeable risk you posed based on your conduct in this offense or this criminal history i'm not sure these are perfect but at least they limit the people to be notified they set they set the universe of people to be notified they limit the sorts of risk to the criminal record in the combination of past and current drug use and they limit the risks to those that are reasonably forseeable given the sources and the people to be notified so these it's standard but it's a heck of a lot merits not covering every possible defendant in every possible risk and then they have a d complete in the doesn't completely eliminate it there is some discretion we're talking reasonably forseeable rest but it cabin's it to something that you know is at least far less than what we're looking at here and if i'm i know i'm way over time does and i think that's in part because there was no realty geisha on this issue there was what happened there was the defendant complained about the evidence for their sins being imposed the government came back and said yes those are wrong you should do these ones instead of the defendant in the reply didn't respond with all in the court just just stopped them and again without really looking at them or or or pulling pulling at them a little bit it's not been tested through the crucible of litigation for lack of a better way of putting it and i don't see how it can be reconciled with the earlier part of the evans opinion where they're saying ok so what risks are we talking about what you know what people are we talking about what sources of risk are we talk  as was discussed by mr henderson the search condition is subject to a plane or review here and that's important because it doesn't satisfy any of the factors necessary for clean air as an initial matter it is a reasonable condition it is not air at all because as your honor said it has this reasonable suspicion requirement that does create a nexus here between the breadth of the search and the manner in which it's going to be carried out if that alone takes it away from the barricades the barricades did not deal at all with suspicion with searches as we have here and we cited nights the u s the knights case which doesn't deal with computers they distinguished in on grounds that computers cell phones have much more data however that went to the touchstone of the fourth amendment analysis which is reasonable in this and by notifying the defendant in advance of the breadth of the scope of the potential search in nights it didn't include cell phones and computers in this case it does that's taken into account in the reasonable expectation of privacy and then protected on the back end by the terms your honor mentioned which are the reasonable suspicion and related to a possible  of the condition and also that there's evidence that the computer contains evidence of that they're required a nexus right a factual finding by the district judge reflecting a nexus and there was no finding here what's the connection between mail theft and use computer well that there required a nexus in the context of a suspicion of search and so where i'm going with that is that here we have a nexus because there is a reasonable suspicion even if there wasn't even if there were a requirement for a nex here in addition to what i've stated there is not clearly so clearly defined that that's required in a in the context of base reasonable suspicion search to make that airplane and so for the analysis even if that did require here  on to your question your honor which is is there a nexus well he didn't know the defendant did not object at the trial court level and had the defendant objected there are potential nexuses that could have been found it's a very low threshold if you look at bear itself i believe the the defendant had a written handwritten sheet of sales of firearms that the judge then said well i think you could be using a computer to grow your firearms business something like that here the connection between either mail theft and potential identity theft or even the use of a computer to communicate with a codefendant there was a codefendant in this case to obtain drugs i mean there are many nexuses that could've been found we didn't get to that point because because you have reasonable suspicion we have reasonable suspicion and you don't need that i condition it didn't say telling this to court you know you made a mistake corrected it just said you know we're going to change the condition right yes or if you think we should do that in this case  in which really is a reason to get yes i bet if it's with respect to the computer search condition i don't think there's any need for that car but if you have if you're talking i'm talking about the notification so i think the notification provision here is in compliance with evans and there is no need to he sent it back yes your honor and the reason is is that evidence if you look at it it just doesn't make sense in any other way to read it other than how it's been interpreted by the government for this office in the district court here which is to say evidence it talks about ants and i can see that there are concede excuse me that there are portions of the current condition that have similar flaws as the original condition however there's no perfect condition and what this does it would be very curious for evans to come out and to write about to cite the sentencing guideline change and to say in the context of a standard condition which really doesn't contemplate individual was a tailoring by each judge to say all of this and then to not make the next sentence which is oh by the way that's still unconstitutional don't try to use that language it just doesn't seem to be a plausible reading of evans now if you look at what has happened in the in the central district at least the central district has modified the general order to have a new standard condition says as determined and directed at the very beginning and the general order in the central district does not have the as determined just as as directed however in substance it's almost identical i think maybe must says shall one or two instances it's almost identical to the provision here not what happened in this case in terms of the chronology was that evan struck down the standard condition there was this period of time during which i think the central district was trying to figure out the proper language for the new general order in the interim this case came through and was sentenced under an almost identical provision as the general order but not exactly so the going forward language of the general order attempts to track evans and does leave that discretion that is contemplated question for me if you can remember to quote from evans and when what bothered evans was quote a vague supervised release condition cannot be cured by allowing the probation officer an unfettered power of interpretation and quote has that concern been satisfied here or is the notification notification condition still too vague because it put unfettered power into the hands of the probation officer that's what your opponent is really saying here that and i think your opponents are also saying you're really is no language that he can find that is going to satisfy perhaps evidence but tell me does this new language satisfy evans and does it put the proper amount of discretionary power in the hands of a probation officer i think under the circumstances when some level of discretion it must be given to the probation officer if a condition is going to be had this does a better job and satisfies constitutional concerns that  specific requirements to the probation officer that you must specify for this law specify the person and as your honor said earlier the judge can then if there is an improper delegation or improper execution of that authority and make that correction it's better than evans it's within constitutional concerns but certainly any condition of supervised release that allows some discretion can be interpreted to beg in the same way i  believe well this condition if i'm remembering at the very least we would need to correct it so that it makes clear that the risks have to be posed by the defendant himself right now all that  somehow absent from the senate doesn't make any i have can't imagine that a probation officer would interpret it otherwise but don't we at least have to kind of you know put in that language i don't know that you have to i do think that's better language if the court feels that it's unconstitutional as worded currently and that language would make that difference then yes the court would have to make that change that is the only difference i think between the condition in this case and the standard condition right and if that's the court's concern yes a simple remade with an instruction to make that one addition would be the simplest that's not what justice she was asking you earlier he was asking rather the remanding with instructions for the district court to go through this process could we not just do it ourselves as occurred in th a brief reprieve next time so there's a lot of discussion about discretion and just i feel like some of that is coming from this idea that new risks might might pop up after sentencing and those should be dealt with somehow i think information officer proration site people being supervised often don't want to go against their probation officers they're not they're not looking to rock the boat and things are going to slip through that area that shouldn't be there i don't think putting in the pose language alone would carry it because you still leaving open what risks whether these are just criminal risks or whether they are risks of non criminal you know but it still may be an imperfect behavior you're not