but the court wouldn't go there as a first stopping point at any rate he would first go to title three in the wiretap statute i'm not aware of any case from this circuit or any court that says that title three and twenty five eighteen as part intended congress has not been at all shy about in acting laws regulating such things as wiretap interception of course we have the patriot act and things like that so what he's essentially asking you to do is look at that statute and say that this is some make those specific to this particular case is that he was making a in the sense of the argument and under the statute of course it is normal investigative techniques that must first be exhausted or sometimes called traditional law enforcement techniques i know of no court federal or state which has ever adopted the idea which defendant is proposing in this case we come to the exclusionary rule i don't believe the purpose of course is the affidavit was approved predictably enough there is not much case law with regard to what the defendant suggests the government side or they first circuit case interpretating twenty five eighteen consent should not be can casually inferred in light of the prophylactic purposes of title three pretty intrusive to go in and listen in on people's conversations and in this case interpreting the statute plainly that was not or it does not immediately emerge that is something that congress intended there is a second argument being raised by defendants and i can address that at this point anything you want to say it might be a good idea to be very good with regard to his pranks hearing i do want to point out that those two arguments that he makes are actually contradictory the first one both arguments are directed at c s one in the affidavit and what he says in his first c s one is actually not that person who had been giving me clone funds maybe's another guy and i never got any clone funds from him of course that means this first argument wouldn't work so i did make that point the two arguments are contradictory as we point out in our brief so yes one actually had contact with the defendant approximately two years last had contact about two years before the wiretap was submitted she has one never had any discussions with the defendant over the telephone that would ultimately be intercepted and of course the wiretap statute is not directed at a person it's directed as to whether or not a particular instrument is going to be used in furtherance of a crime he never had any i believe it was you know i have to check inside of my brief it's from i think it's the second circuit case but it was sort of the leading case that fall from the consent can be not only expressed but implied in fact you laid out in there you look at the common law to determine the scope of consent in that case there was a statute where it had to do with electronic storage and a subpoena on an internet service provider but judge kozinski went through the analysis of looking at the common law as to whether or not to put a gloss on that word authorization under the statute in this affidavit is there necessity or not and so what happened down the line subsequent after that motion was denied and new information came down later in my mind is not e basic argument is that it's less intrusive it's not intrusive at all under the law to do it the way we suggested so i would i would suggest the go in this way that's whethe