case we have isolated incidents to specifically of a person of unknown origin using a phone of unknown ownership and provenance at a residence we don't know what  relationship this person has with a residence we do know the person has about thirty days or the access to the wife five that is all we have to isolated incidents one of the image of us uploaded by use of the wife five for the residence and the other was uploaded by use of the i phone's own standalone internet service that is the information that the agents had and with this information the only two possible conclusions could be the paul the following possibilities that there was a temporary resident of no more than thirty days at the house at the time the other equally plausible is that there was a stranger who was using house his home's wife a service somewhere in the vicinity of whatever it is fifty to one hundred could have been a neighbor i have provided the court numerous instances just by doing a simple google search of cases where neighbors have been arrested by using another neighbor's unprotected a wife a service to download tell pornography is very much a problem and if something does the elop with technology so given this information what is it that makes this case so unique as to allow me to ask the court to consider the probable cause question before the ordinary and conventional good faith standard application to a search warrant two words cell phone cell phones are unique cell phones have changed is the supreme court's fourth amendment jurisprudence since two thousand and fourteen ever since jones started it continued on with  by requiring a search warrant for all of the information contained a cell phone and most recently in carpenter from which i have borrowed some language that i think is instructive to this honorable court in deciding the merits of this first second and third issues i will quote first of all i will make the point the government makes a point and the agent did at the hearing that cell phones are computers that is true that cell phones are computers but they're much more the congress however is not computers are not cell phones cell phones are carried by people everywhere all the time and people do everything with cell phones now that they can even do with computers this is an important point in this issue because the fact that the person  have the person that was detected committing these two uploads could have committed this crime without any use of computers we don't have another computers in the house before for use continue and there's just a threshold question at the suppression hearing right in the first remark you were very clear you weren't seeking to suppress your client's statements confessing to being alex and the photos we initially raised the issue but that with your with your own right and then that's not an appeal so even if you were to prevail on this issue since it's a conditional plead your client has confessed to being alex and to have uploaded the photos what what would happen even if you were to prevail with that confession not being challenge which you have been pursued that below you accepted that is confession was valid i do believe that yes your honor but i do believe that the court still has to make a finding and the government has an argue that there's an confession somehow validates the admission of the evidence so you'd want to undo the plea anyway if you were to prevail just on what you're attacking the second sort of threshold question i have is what would how would your client have standing to raise a carpenter claim against attaining the father's account information that that's a very good question judge carpenter did not address that issue carpenter assume on its facts of very limited narrow holding that the records belong to carpenter that is correct i do not have an answer for that other than to state that the manner in which carpenter had not has not been developed assumes that the issues the important issues to deal with is not so much who on the account but the movement of the person right that this doesn't pertain to any movement well and as far as carpenter is concerned i thought that was you aren't a legend any of the normal four exceptions to leon in good faith normally we would just reach good faith first we wouldn't go further you're saying there's something so novel we need to give advice and guidance and i thought the novelty of this case is your view that carpenter triggers some novelty rather than just ken does once in an agent with seventeen years experience says there's a fair probability the person who uploads will be at the computer from which it uploaded it w house they have computers and other media where they have to store their their cache of illegal down the list they could keep them all at a phone the court elaborates well individuals regularly leave their vehicles th compulsively carry cell phones with them all the time a cell phone faithfully follows its owner be on public thoroughfares and i will highlight and into private residences doctor's offices political headquarters and other potentially revealing locales citing that cowell opinion the court continues nearly three quarters a smartphone users report being within five feet of their phones most of the time with twelve percent admitting that they even use their phones in the shower the point is  language judge is that you can now commit a crime with a cell phone without any meaningful relationship to a house that's what makes his cut this case unique i've used in my briefing example of the starbucks  the patron shows up sky next to the y fire and commits all kinds of crimes buy up million dollar child pornography but you are able to ask exactly that same starbucks hypothetical to the agent in the suppression here yes well it's a looks like one of those no good deed goes unpunished agent did paid with extensive background in preparation before  applying for the war well just i will respect we disagree on the issue of extensive preparation if i may point out the following all of what the agent in this case was with the information that was obtained by the agent in florida specifically the thirty day activity two uploads in thirty days that information was sent to agent dunnigan seven months later so that he received the case in november of two thousand and sixteen not surveillance so they had the same piece of information for a whole year before they executed the warrant i will point out what agent dunnigan and the government failed to do by his own admission on the record at the hearing the following are the failures and the lack of diligence failed to conduct surveillance at all in other words and i did check twice a year is not surveillance fail to research the cell phones own ip address to find the owner they could have done that they did he said it was impractical to do it they could have gotten hundreds maybe thousands of results but he didn't say it was impossible that would have been important critical issue in this case they never they never found out who the owner of the cell phone  all and they could've but they didn't try they failed to attempt what we consider the dreaded not been taught they could have gone to the house and asked questions hey you mind if we ask you for your phone number can we do a record search just to  see if there's any activity going on we've been getting some complaints around the neighborhood of illegal uploads but they've just got to get they've just got the nexus just has to be established to probable cause but why would they want to do all that more because they didn't have grounds because they didn't have an x you can't infer from this knowing more problem ok would you have any circuit case that says that because strangers might walk by a house or gas might walk in that any child pornography case that says that within a year is somehow too stale i don't know so it came back to my first question you have any nexus case texas case on child pornography no your honor we don't so you don't have a case on either pro not as a child pornography but i do have the elements and in the case law cited for each of the elements when you apply these facts reject the find of nexus and that's part and parcel of the argument these are unique fa constellation together yes you are now one of the other if i meet two more issues two more failures to investigate a failure to research the e mail account there was an e mail account of in the kick at alex a and he couldn't just try to run checks as far as when you count the email address to try and confirm it maybe fail to conduct additional kick up block searches and note who was at the residence when the i phone access the wife a service what this means is that it wasn't even and then go to the house and see who was going to the house and they would have narrowed down at least a group of people none of that was done instead what the agent relied on is but if a language that somebody who collects tap another feed generally keeps  to make that argument you know only ultimates but it just seems you are again it was an imperfect or incomplete you know investigation at every turn wasn't turned over but one if the standard is probable cause and so who but it's difficult to see how you you prevail even if what you say is true that everything it potentially possibly absolutely could have been done how either or nexus either alone or in combination with stillness defeats the war because either of those two also are vehicles and of the first circuit case all that allows to defeat a good faith fine and we would anchor we have freeman we have language we notice it as a solo you have understood i cited in my brief and this is the language the fact that there is probable cause to believe that a person has committed a crime does not automatically give government agents probable cause to search his house for evidence not only was there a problem what next when a whole year judge came in the mobility of people in our society when i think you've got your argument in terms of the year you mansard that there's no cases is a years too long and i ask you to succinctly give me the whole is in you've done it you've got a red light so let's hear what the government has to say in response and you've preserved your rebuttal time to come back up and either complete the dog or you drop right thank first want to address with this court the good faith issue this court counsels that the first issue it turns to in the analysis could say here in this case special agent dunnigan did exactly what the fourth amendment and the  affidavit he believed that there was probable cause he submitted it to a neutral and detached magistrate judge that judge likewise that it probably cause existed and this place somewhat into the point the judge take in saying you were believe that clearly the agent subjectively had good face that the warrant was valid and objective lee speaking there would be absolutely no reason for him to think the work was invalid in a related they the supreme court  counseled that the exclusionary rule is to be applied in circumstances where there's negligence intentional or reckless police misconduct in this case there's nothing in the record suggests that there was any sort of misconduct by the thought there supplemental briefing and i just assumed it was because carter carpenter was intervening maybe i'm wrong i don't believe that's correct john you go back and check the record on that but you haven't objected on standing grounds though i've not your honor i guess it would help me just because just maybe describe sort of mechanically these the investigation to be able to ascertain where there is probable cause that child pornography might be  it all starts out with a chat room right and that's a canadian facility yes sure in a related point so it starts out that the investigator is part of a chat group this is the kick application and the chat room in this case is three capital y a capital locally and i would know for the court that that title suggests an interest in pedophile your child pornography and i think that's relevant in referring to the allen case where this court talked about or she from a case where this court talked about how a screen name could be indicative of interest in child pornography but that's how it starts the investigator there was one upload that was done through a cell phones cellular data network which network that was of rising o internet service provider and typically it's going to be a wireless router system that's inside the home the second load upload was done through a route again and if i'd we had a device in the address where you eventually search is that correct is it that straightforward so that the second upload on it was done through an i phone but the i phone was connected to the wireless router network ok and that's the verizon and the verizon account connected to that address that's and supported different here communications and frontier communications was the actual internet service provider for that home address ok when they served the grand jury subpoena on frontier communications it notified them and said the count holder for this internet service count is going to be so contrary which is the defendant's father when they ran the cake subpoena it had a period of about twenty eight days of information and in the warrant special er in the home why i agree or i think i think that there's no distinction here as to what divides uploads the image the fact is that the image was uploaded through a home router and the fact is that on the kick gran subpoena returns during that twenty eight day period approximately one hundred times that device that kick application accesses the home router and that would certainly give agent done a good reason to believe a probable cause to believe that whoever is using that kick application that device has a link or association to the home and strong association is not a one time wink it's not twice it's about one hundred times over a twenty eight day period and i certainly think that that will pass muster and showing all will cause to believe they're not part of that home is the person who possessed the child pornography that was uploaded kid and the argument they've made is that it's the starbucks hypothetical that well it's possible someone walking by one hundred times each time snuck in through that why five is any court to your knowledge district or circuit adopted that theory to say no probable cause as to the people in the house because it's more probable it's the people outside of the house know your honor a fact the scores actually rejected that line of argument in united states versus prez which is reported forty four f thirty seven thirty five mr prez made that same argument he tried to argue that he quote used an unsecure wireless connection the neighbors would have been able to easily use pres internet address to make the transmission in this court responded by saying that though it was possible that the transmissions originated outside of the residence to waste ip address was assigned it remains likely that the source of the transmission was inside that residence and that it reverted back knowing the probable cause standard is merely a fair probability and th between this case and carpenter yes you are i think i'm going to borrow from a district court that actually addressed this question outside the circuit but i think that court did an excellent job of addressing the station  cases united states first tolbert its from the district of new mexico and similarly in that case mr tolbert was contending that was improper for law enforcement to use granger he subpoenas directed towards a o l a century link to find out identified information related to his ip address in his e mail accounts and tolbert court noted that there's two lines of supreme court cases there's united states versus bill or which talks about the expectation of privacy and bank records and smith versus maryland which talks about no expectation of privacy in records of doubt telephone numbers conveyed to a telephone company and that's one lot of cases talk about no expectation of privacy and the carpenter talked about an expectation of privacy as far as a person's location movements and the court in tolbert held that the information regarding ip addresses scriber information is much more like the bank of telephone records and miller and smith and rares carpenter is much more personal or privatized information and the court here always quote from  privacy interests in this type of identifying data which presumably any l a o l or century link employee could access during the regular course of business simply does not rise to the level of depth of the evidence and carpenter such that it were far  not been a showing by the appellant that he would have standing to challenge the subscriber information for his father as far as his internet service account at  even assuming the good faith doesn't apply in this case for some reason the magistrate judge had a substantial basis for five public cause and at the outset i would note for the court two important considerations first this is a prob standard not proof beyond a reasonable doubt second a magistrate judge determination of probable cause is entitled to great deference by reviewing courts i've cited my brief to united states first perot's and i won't go into the details of the facts that case but similar go ahead in this case investigators were able to link the distribution of child pornography to a certain ip address located a residence with that information they take of search warrant for that residence we believe in several respects this case is similar to the prez case and therefore establishes probable cause the sixth circuit tenth circuit have each addressed situations analogous to that in peru as and again th in the brief and that's going to be united states versus gillman and united states versus ren let's talk a little bit now about about the appellant's argument that somehow the cell phone changes analysis and i've talked a little bit about this i don't think the device used to access the home router changes the analysis and any is well aware with the dance of technology devices have become smaller much more powerful and indeed the cell phone today is much more like a micro computer than it is a cell phone are two district court opinions that talk about whether this changes the analysis in the first one is going to be united states versus sco and that's an opinion from the northern district of georgia and that court addresses a similar argument to the one that the defendant makes here and in that case he argued that somehow the use of a set of an i phone as opposed to a a stand of standalone computer or desktop computer have a computer at home connected to his internet service account contradicts common sense and experience this is particularly so where the evidence shows that defendant used to maintain an i phone through his home ip address and that i phones are usually activated from a home computer and are usually updated and st through a home computer connection and like him is a pain in that opinion your honor in this case the affidavit knows the inner relationship between between computers a special agent dunnigan note that the i phone can be hooked up to a standalone computer or a laptop computer and there can be sync with that computer and it acts as a backup for the information especially today you can also noted that child pornography collections are highly valued for child pornography collectors they're very important to them those collections are often maintained in the home it would be a fair probability that the information the i next one turn to the question of staleness sure honor as this court has noted already the question is whether the information was so dated as to render official belief in advocacy and reasonable and as this court has noted during the opponent's argument there is no case out there that would hold in the context of child pornography that a period of less than one year is stale and in fact this court's jurisprudence goes the other way and united states versus allen this court held and noted that those periods did not render the information stale the less than one year old information in this case is well within the boundaries that meant set by this court and accordingly we believe that stillness argument fails specified specificity required for a warrant depends upon the nature and the circumstances of the investigation here the investigation was that a person was uploading child nagi at the time the investigators had no idea and could not know where the items child pornography would be stored i've cited for the court case united states versus rousseau i would also like to direct court's attention to united states versus bronson that's a district court case from the western district of texas it's a to two thousand and ten west law one one five four five seven four six in that district court notes that in its review a fifth circuit case law that upholds warrants chop pornography cases for a range of materials so long as the objective is to search for child pornography and that's exactly what had in this case we didn't know exactly where the child pornography would be located but the attachment be to the search warrant it directed the agents to look only for child pornography in the electronic devices because of that we don't believe that the war was over broad and finally run of luck to turn and talk a little bit about the carpenter location data i've already talked to the court about united states versus tolbert had how this is a far different situation than that prison carpenter i would also direct this court's attention to united states  east that's reported at eight eleven f thirty seven forty three that's the case from this court to six in two thousand and sixteen in that case study with approval the third circuit's opinion that subscriber information provided to an internet not violate the fourth amendment and we believe that consistent with we still inconsistent with the analysis and tolbert the information a carpenter is far different from the information that law enforcement obtained in this case only if there's no at the home that's the issue the critical issue here is the cases cited by the government include situations where we know that the person that is investigated has a link to the home those cases that were cited also include it phones or cell phones so it is assumed that somebody at the house assessed child pornography and when the staley's argument was presented it was rejected on the basis that knowing that somebody child pornography that person will keep it for many years we don't have any claw with that proposition we no problem with that that is accepted and it's well established fifth circuit law the problem here  we don't know who the person was but this is one single upload from the wife i connected to the home one single upload even though they have contact with that wife and for that period of time also we don't know if there were computers we don't know if there was  graffiti stored at the residence other than with the cell phone we don't know if somebody transferred anything from a cell phone to a home that presumes that the person had substantial connections to the home which we don't have any evidence of all we know is that somebody the mattering carpenter by the ip address there is this circuit law that has rejected the argument that ip addresses are subject to fourth amendment protections that is true however the issue in and not render the address for the home there's still have to be a couple of subpoenas issued to each of the phone providers so that by knowing the ip address you could find out who the providers are that's not a problem but they still have to send subpoenas instead of warrants which we argue to each of the providers to then disclose the location of the wife on the location of the y find this case is the location and or about circumference of the home of the person that did the upload and so on or carpenters consistent with carpenter that information disclose the location or the whereabouts of the person that did the up looks that's the connection with carpenter and because that's specific information was obtained without a warrant we have raised the issue in the carpenter we believe that the facts also in response to justice chief justice judge stuart that there is no case on point there is no case on point on these things but that makes his case special it's a it requires a court to reconsider its application of law to ordinary facts we're not dealing with laptops or desktops in homes that collect dust over years it's a very mobile society all of the illegal uploads all of the illegal activity that a person does once or twice while having some unknown connection to a home can all be contained within a cell phone now times have work to find out who had leased the resident of the house connected to the phone was none of that was done and so the example of the starbucks of patron is very much on point albeit without the traffic anybody could  thank you from the government also interesting cases always case to be submitted to legal decided we have one more point your honor if i may make very briefly on point number four it is not our intention to