pornography in the affidavit as images of children engaged in sexual explicit conduct detective jennings provided the magistrate with a number of examples of exactly the type of conduct that would fall in the category of experienced officer she works in the cyber crimes unit the unit that investigates sex crimes like this one and the only inference that we can draw from the fact that she used the term chalice petition materials rather than child materials were defined to include child pornography however we know from we know from that statute that i think the phrases in this chapter the following definitions apply from that we conclude that outside that meaning we can't conclude from the phrase trial exploitation materials that the images are in any way sexually related or in any way involve sex sexual conduct we certainly can't conclude from that phrase that a they are of because they're not described we have a phrase this not defined the district court well the question would be how much weight we give those the totality of the circumstances the district court gave a substantial weight because the district court came to the conclusion that the phrase child exploitation materials and child pornography are interchangeable or synonymous again we don't find meaningful or compelling support for that assertion even assuming that assertion is correct the real question is whether that information was before the magistrate we know that we know that fact was not contained in the affidavit we have no reason to believe that  why wouldn't that be fairly strong a fairly strong inference that we are talking about child pornography images here if the term itself isn't enough a it's not dispositive in and of itself we would have to assess it sub some weight so value what we know is that recent convictions are more valuable then than over convictions i'm not really talking about the value of the of the conviction itself i'm talking about whether we could ensure or from some of the language that's included in the affidavit that we're talking about child pornography images here i don't think it i don't think that we chose not to use that term in describing the images that were recovered she chose not to describe the images that were recovered to to avoid just this problem and so the fact that mr kilgore has a prior conviction is just  thing to consider we would give it more weight if it was a recent conviction less weight if it was over conviction we can't determine from the affidavit whether it's a a recent conviction or older conviction we do know that he has that he is still a registered sex offender the government felt that that was important they took a look at purina i think it was where the defendant was still on probation and for the fact that he was on probation they infer that it must be a relatively recent  conviction however this is a probation this is a sort of a registry many i possibly most people who register under sort of maybe lifetime registration so given given given that sort of has a lifetime registration possibility it is much less it is much more difficult to make the inference that this is a relatively recent and therefore more valuable in our cess meant conviction so so we have we have the two images we're not sure what they're of we're not sure whether they involve anything sexual we're not sure that they're even illegal we have a conviction it may be thirty years old it may be thirty days old we don't know it's again it's hard to assess value in that circumstance we know that photo d n a was used to determine that they were child exploitation materials which because it's the same term doesn't take us exploitation that is legal well we're not talking about child exploitation we're talking about images of child exploitation also child explain to you now images of child exploitation that are legal i think we certainly could for child exploitation encompasses transporting a minor for legal reasons for instance prostitution so if you had an image of a minor child being transported you uploaded that image of a minor child being substantial weight to the term child exploitation material no images of child exploitation material because based on his experience his his training his special knowledge he believe that images related to a government database to store child pornography and so he concluded that the images that were uploaded could not have been other than child pornography again that that may or may not be correct we don't find any support for that in the government's answer brief even if it is correct the real question again is was that information before the magistrate and what we know is that that information was not in the affidavit again we have no reason to believe that that information was conveyed orally to the magistrate and those those facts don't appear to be commonsense inference type facts what they appear to be that the fact that two images were uploaded over the course of two months given that we don't know what those two images were given that we don't have any definition or meaningful definition for child exploitation material  given that the magistrate wasn't provided with any information to allow him to make those determinations given the age of the   from which those images were not uploaded sufficient nexus doesn't exist then the good faith good faith under leon would apply to this case and we would be limited to examining whether there was a substantial basis for determining the probable cause exists nature we don't know that they're illegal to possess along with a prior conviction that may be decades old for all we know to lead us to search a house in which no criminal activity was known to have taken place so if there's no more questions i would save the remainder of my argument for rebuttal thank you dial and i represent the united states this court should affirm a district court's denial of mr kilgore's motion to suppress for two reasons st the search warrant was supported by probable cause and nd even if this court determines there wasn't probable cause the executing officers reasonably and in good faith relied on a neutral magistrate's decision and i want to start with some of the questions that your honour's raised the st was isn't child exploitation child pornography ultimately this court doesn't have to determine that answer what we're looking at here as defense counsel mentioned is the totality of the circumstances and the defendant relies quite heavily on the fact that these images were not known it's to unknown images that just were child exploitation this is significantly different from an edwards that the that the defendant relies on heavily in his brief because in edwards the court noted that there was no uncertainty regarding the content of the images that the defendant had posted here perhaps there is uncertainty perhaps the issuing judge doesn't know for certain that these images of child exploitation are images of child pornography but that goes then to the nd question raised by your honour's can we infer from the language in the affidavit that these images are referring to child pornography and the answer is yes because the court are looking to the totality of the circumstances looking at what the state judge had a substantial basis to determine probable cause just from the four corners the issuing judge knew that the defendant the affiant was a detective in the cyber crimes unit knew that we were searching for evidence of distribution of child pornography and that this search was in physical with searching for physical digital or electronic form including computers cell phones and electronic devices so more than just images but also potentially the electronic devices used to upload those images the issuing judge knew that there were two known images of child exploitation that had been uploaded to kick kick had reported these images to law enforcement that photo d n a which the affiant described and i should have referred to this this  taken from the warrant which is volume one pages one thousand and twenty photo d n a of the affiant describes help protect disrupt and report the distribution of child exploitation material one more brick  connected to law it does not your honor the affidavit only so the s e s could get this information from anybody so there is no compelling weight that we should give to the fact that it came from not from the four corners of the affidavit know the judge the issuing judge may have used his reasonable inferences based on his experience and his experience seeing kate but we don't know that we don't have that and that's not necessary to find probable cause here what we do know from the affidavit is that kick reported these images to law enforcement we know that the defendant has a prior conviction and this prior conviction is directly linked to the type of evidence being sought here it's a prior conviction for that thing for distributing child pornography and the affiant is requesting permission to search for distribution of child pornography was tied to computerized is that's what you're searching for his computerized images and his prior conviction was also a computerized images and what we know from the affidavit and said his prior conviction was for possessing distributing it's a whole host of yes electronic it once electronic it doesn't say that it doesn't say electronic no test for curing producing distributing missing child pornography so it could have just been a hard hard phonons it could have been yeah but the totality of the circumstances here where there one uploads from an ip address that's been linked to the defendant support give a fair probability that this is going to be electronic electronic evidence that's being sought the  also establishes a sufficient nexus the affidavit links the defendant to criminal activity and then the defendant to the place to be searched as this court noted and big low there are four factors that can be considered for determining if there between the activity and the residence the st three are the type of crime opportunity for concealment nature of evidence all of these this court has held common sense suggests that child pornography will be secreted in the home it's the type of crime that is heard the type of evidence that is hoarded it is held onto and is kept private in a private residence the most important factor from piccolo for this case is the th one which is that blow said that that excuse me but sufficient nexus between the criminal activity and the residence could also occur from all reasonable inferences that the issuing judge would make as to where a criminal would likely keep such evidence so issuing judge can use her common sense to determine where this would be now the affiant does what we would want the affiant to do she researches she finds out what is his address and she includes in the affidavit that he that the images have been uploaded from a prior address but that based on his sex offenders registration he was now at a new address a judge would reasonably infer that the type of evidence for here child pornography images that we know are frequently hoarded or kept and computers the personal computers personal not tronics used upload these images it is a reasonable inference that the person would move with that evidence in fact it would have been unreasonable for the judge to issue a warrant for the prior address because the judge knew that the defendant was no longer at that address and it's common sense and reasonable that the defendant would move evidence of this crime with him to his new address as regards to make a double double inference so because st you want to make the inference that that these were  the individual's home and perhaps with their computer as i want to keep it private and if there isn't it you st got to make you st need to make the image the inference about the images that that's and that's  affidavit we can conclude that the images were illegal to possess that's not necessary what we're looking for here is probable cause whether or not there is stansell basis that there may be evidence of a crime there probability that basis for that however in any event if the evidence doesn't need to be suppressed because the executing officers it or excuse me if the court disagrees or feels that there is not a substantial the officers still acted in good faith when they relied on the warrant issued by a neutral judge the good faith doctor and of course is an exception to the exclusionary rule the goal here is to prevent unlawful activity by the officers here the officer did the affiant did everything she thought she needed to do and then how did approved by the judge and then based her and then did the search based on that warrant of course good faith is not absolute and there are four exceptions i'm only going to focus on the rd which is the affidavit lacking in in addition probable cause that would be the i don't know i believe the executing officer was also the i'm not sure if that's what your honour's but i see a question of whether this was not a situation where put together a barebones affidavit then hoping to rely on the ignorance of the executing officers here the executing officer had an  court noted that good faith only requires some factual basis connecting the place to be searched for the defendant or the suspected criminal activity only when this when defendant's address or any other connecting connecting information showing that the defendant was linked to the address that's not what is at issue here the f b i clearly put then this is the defendant's address finally any thank you in your rebuttal i think once again the the the warrant didn't meet even with sufficient nexus between criminal activity in a place to be for child pornography distribution or possession so so the b b affidavit doesn't present compelling evidence that a crime occurred much less the evidence of that crime would even be found in this nd home that the mr killer resided in i think it's clear that the i think could have done a lot more with with this affidavit it's not even clear that yet it's not even clear it's what this program described the images it's i think the last thing i want to say is that it's not clear that anybody saw the images beyond this program that's either operated by chick by the government or by some other internet company looking at the f d a we don't even know the answer to that question so i think that's all i have to say as well unless or questions thank you are you know on thank you thank you both for your arguments the case is submitted