district court in this case aired nine and its motion to suppress evidence the search warrant affidavit fails to establish probable cause the facts as set forth in that affidavit establish daughter and sharing that image with others and via video of the investigation further establish that several addresses that received images some of which were received these images i mean i what i want to ask you first is really to clarify because in your opening brief you appear to argue very strongly that the affidavit supporting the warrant had to have either the image itself or a detailed description of the image included somehow in the affidavit and the government responds that's there is no such absolute rule never to show that the premises to be searched may have evidence of whatever it is you're looking for in this case child pornography so so i want to know are you arguing for this absolute ruler or do you concede that it's really more a totality standard as described gates your honor i'm reluctant to acknowledge this but i think the government made a good point in its brief when it references the fact that there can't be the absolute rule at least as i have argued in my brief before the district court because as this court well knows in clark there was a terminations that the affidavit established probable cause in the images were neither describ it could be now before reading the government's brief i believe that the rule that this court has set forth in those opinions is as follows if a search warrant is seeking to establish probable cause based upon the nature of the images there exchange that that affidavit must under those circumstances contain either the actual images or a verbal detailed description of them so that i think it's i'm not sure that that's right i mean that's certainly secession but the question that we're dealing with is whether that's necessary which is different inquiry ok and so you're i guess what i would say though is but let's assume that the court were to say that the district court was wrong on this point that clarke announces that no such rule that doesn't isn't determinative of the problem probable cause inquiry and so while it may be that there is no bright line rule in this district and as i have argued in the district court has found i think we can all can say of this i'm looking at the affidavit and finally after telling you all about the history of his life around page fourteen is this affidavit gets around to the the application of all this expertise to this case and we get in paragraph fifteen recounting that the that when they search car penske they find child pornography and  sends child pornography particular files to these addresses that he is asserting mr weathermen controls isn't the worst you can say if this is it's a little were of child pornography and so on and this cams zero zero three one three and zero zero two four eight are very particular descriptions of of images that are child pornography  and what is the description that's very specific right but ok so i guess what i would say is i think i can say a whole lot worse than the affidavit is simply incorrect where are the facts in this affidavit that allow the magistrate to independently determine that this very specific file c m c m three one three is in a picture of a mcdonald's well i guess i would say you get a little further down and he's looking at paragraph thirty one he looks it whether means facebook page paragraph thirty two young female then you get to paragraph thirty for bondage creating pornography i respectfully disagree with that your honor i think for that conclusion to be made there has to be some evidence that there was child pornography that was traded and there are no facts we this is a situation where a anything right it's point but whatever the court and car penske is the judge points out winds up getting indicted for this so at least some other people the grand jury thought well you grand jury's role differs from from what the magistrate's role is in determining ensure the supposed to find probable cause right right i have no doubt your honor a probable cause that a crime was committed whereas this particular judge is determining whether there is probable cause to believe that the evidence of that particular crime will be located in the area sought to be searched what's significant here your honor is i would concede that had the probable cause but the reality is in reading that affidavit there's no indication that the same images the grand jury determined to be child pornography were said to either of those two any e mail addresses and this is a case where there is no description i mean whatever anyone decide whatever the court determines there are no specific facts upon which the magistrate could say i find these images to be child pornography there are just conclusory statements throughout that they are child pornography there's no indication who says they were or what photos that unknown person thought in so essentially if this affidavit is sufficient to establish probable cause all that's needed is joe smith sent child pornography to joe blow and here's the e mail address and that's good enough but the reality is the only way this judge a viewing judge finds probable cause is if he just accept wind that it is child pornography cannot do that and we believe that the bright line rule there is such a and that this affidavit at the time it submitted under that right i was submitted under that bright line rule was clearly deficient but even if there is no bright line rule i believe the affidavit is so deficient in indi a of probable cause that no one could truly believe that it that had it and again i would just come back to you they're searching for evidence of child pornography and what is what are the facts in the affidavit  what image c m zero zero three one three was but how do we know just looking in isolation at this affidavit you know that it isn't you know a nice shot of the beach when you went swimming one which revealed numerous images and videos of child pornography but what if what if that person thinks child pornography you know it is you know a little girl dressed up in a ballerina costume or something most people that most people wouldn't think of is anywhere close to child pornography and this person just has some idiosyncratic notion we don't know what what they're talking about to be the affidavit it's not include a particular seven through thirty three of my brief five i won't go into all the details of that i will point out to the to the extent of does not include the particular arise description this court and the supreme court has in the past routinely relied upon the out through ration of law enforcement on that a particular item was contraband in making a probable cause determination we have first amendment overtones here i mean so even even the government and in this affidavit is drawing a distinction between i'm looking at paragraph seventeen and page sixteen of the certain e mail address a total of seven images four were of child pornography one was non child pornography and then the next paragraph says seven child pornography one is child erotica credibility of the fire to me because it indicates that they were capable of making that distinction but we don't know where they drew the line directly flint maybe they were all eight child erotica the i mean why in your view is the particular image falls where the when the judge can't see it judge is not able to make any kind of independent or c or you know in the indictment you have enough of a description that i don't think anybody would have a problem with it that the i guess it goes back to the the point i was i was going to make earlier that eight judges are entitled reviewing judges magistrates who are entitled to rely on its subsequent of training and experience law enforcement officers that whenever there are they're viewing this contraband and so so in your view from now on the only thing that needs to be said in an affidavit sporting search of premises for child pornography is child pornography investigations at this appliance and i again if it kind of goes back to that the line of cases culminated in supreme court cases that say that a drug agent flying above the ground at three thousand feet looking down on a marijuana field you can go to a judge and get a search warrant for that marijuana field based upon his assessment that what he was looking at was marijuana i don't strikes me as quite different i mean plants look different and some people are good with plants and they can see what's marijuana as opposed to a cornfield hers pose health south or whatever else may be growing here you're talking about you know a very specific characterization of a particular image and as i said if the indictment information were there you know you don't have to i don't think you have to put the image itself there but if you you know the children were nude or whatever i mean there if you can get to the point of saying sure you know there's that you're describing something that we would all understand to be child pornography i guess and i'm basing this on my own experience and and maybe that doesn't count for anything i would have an easier time doing something with child pornography than i would doing something as marijuana from three thousand feet there given the the precise definition of what child pornography yos in the federal trial throughout a priest as use given that this age participated in five hundred investigations given that the affidavit indicates he knows the difference between child erotica and child pornography and that he did this for fifteen years to me that is that is an adequate but the point is is that we've we started we started this process believing that that the dictum of this court had coalesced into some kind of solid rule saying that that the the search warrant affidavit involving child pornography requires a particular description or or the attached images themselves after sixty pages of briefing we now come to court and we find that councils advocating a different rule and and now they have that and you write in the train up here that but i guess that the the point i was trying to make is that if after all of this briefing and all of this discussion and and a brief filed by counsel in my response if we're just now coming up with a rule then it plays into the good faith analysis because if we are just now figuring out how could this agent have known it when he didn't have the benefit  of of all the briefing and in this court's discussion this morning so on that basis of there are no other questions from the court i will yield the remainder of my time thank you all right thank you very much you ran out of time mr shelter if you have one more minute to give to us i will give it to you here i just want to note that to the extent it matters to the court in its analysis of probable cause there's no indication that this afeared personally viewed these images and he certainly does not express his opinion based on his experience at those images were child pornography i think it's quite possible reading the affidavit that he simply relying on the information  that may be significant to the court's analysis you argued also brought up in your questioning i think you brought reference facebook accounts and the idea that there was something nefarious associated with them there's no suggestion in the david that builds those accounts were involved minors i think the affiant very specifically chooses his words young females if that were minors if there was clearly a minor the affidavit and out of that would have indicated as much but i think more importantly for this court's analysis is absolutely no evidence that any of these facebook accounts were used to target individuals were attempting to groom anyone look at he didn't look at the actual child i don't i was positing that the court it's possible he didn't look at the actual images of child pornography that that's possible you are absolutely correct that he reviewed the facebook account i think what's important though  while his facebook account and the two women who received e mails are undoubtedly associated with him the other six e mails which the court is referencing are not e mail accounts dead that he specifically thank you very much the court will take the case under