can please the court my name is laura berger and i represent the appellant patrick they are here today it's now clear that the laptop was searched before a search warrant and without valid consent and we only know this because the parties engaged in intensive fact finding after this court remained it following mr first appeal given the extreme opaqueness of the factual record previously at the time of trial at least from the perspective of the defense is not reasonable for the district court to have applied waiver principles and to preclude a r from challenging the admission of the laptop at this time this fourth amendment challenge  heard on the merits the laptop should have been suppressed because the independent source doctrine does not save the warrantless search it meeting this computer evidence deprived mr ney our of a fair trial and this court should now  the judgment and remained for a new trial the district court properly held on remained that the consent of mr ney arts wife was not valid in that it was not supported by either actual or apparent authority the district court erred however by applying waiver principles and relying on the independent source doctrine as an exception to the exclusion aren't real so my intent today is to focus first on the waiver issue and then on the independent source doctrine and then if there's time i'll dress the consent issue i do not intend to address the sufficiency argument that we've raised as to count five of course unless the court has any questions we can address any of this  order that the judges prefer and i just add one thing to your agenda absolutely done which is good faith good faith rock doctrine i know it was raised towards the end of the government papers and you address it just a tiny little bit in a sentence or two in your reply but i'm wondering if you could sort of build that in to your overall piece or we could talk about good faith right now and you know the answer to the good faith issue is nobody is arguing here that the agent operated with bad faith nobody's arguing that they deliberately went in and performed an illegal search but there is no requirement that there be ill intent for the fourth amendment to protect the privacy of our possessions and particularly our computers and the question here is whether what they did was reasonable and whether there is an exception that actually applies and the mere fact that there's no evidence that they acted in bad faith wasn't enough to save the  unreasonable about one thing they did i mean they thought they had consent and then as soon as there was a question they went to the prosecutors and raised the issue there's two issues here the first is the premise of your question that they thought they had consent and as we argued below in this the district court ultimately found that wasn't reasonable what the agent it wasn't reason they had consent but i think  perhaps i misunderstood the import of your question the first thing i was saying was simply that they assumed they had valid consent relying on the wife's consent but they hadn't thoroughly investigated it as the district court fact that's piece one piece to where i think your honor is going has to do with ok so what do you do after they see what they think is child pornography they stop they call the usa and the a way say ask them some questions and says look into this further this is all fine and i'm not disputing that this was all done in good faith by the government and by the agent but it's what happens after that so they find out that there's no sob as consent is not out she does not have a discloses those facts to the defense and instead they get a search warrant which they have probable cause for and it's a valid search warrant but nothing in the search warrant indicates that the computer had already been searched obviously they've walled off any information that got glean from that search from that search warrant but there's no way for the defense to know at the time of trial at the time it's anything from that search the early search based on the consent  supply probable cause or of the search warrant it did not it did not there any argument that that somehow gave them better information that would get them a search warrant i don't have that argument your honor there's nothing in the record that that suggests  anything in the search of the computer was used in the search warrant and there are two things reasons for that one is on its face it cites evidence for probable cause that has nothing to do with the search of the computer and the second is  government has told us and we have stipulated below that the agent who did that search did the initial warrantless search was walled off from the search warrant application so the answer candidly to your question is no but that's the have or have a basis for getting the word it but the other one is did something that happened in the search cause them to get a warrant and hear it clearly did they clearly were prompted by what they saw in the computer and we don't know  where you're assuming your honor and maybe perhaps it's fair competent to go ask on war but not in the sense that in the probable cost sense it was more in the sense of we've got to check to see whether the consent is genuine that's the prompting would you agree with that i would largely agree with that and we have the benefit of stipulated facts and it's not so much whether the consent is valid it's that there was a real concern once the factual record was more thoroughly developed that the p k report that was given a year before the trial even started with this evidence list that shows that his computer was added there's five four references five references to it was added in december of two thousand and nine would not aler sure that that does alert anyone that someone's looking at it what that says even if you can understand the gobbledygook that the computer was divided into five portions and each of them was added to the f t k access data system that was going to prepare the computer for a forensic commit that doesn't tell you that agent kelly had been running searches we don't find out that each and kelly have been running specific searches on that computer before the warrant until after this court remands and we get f t k special agent kelly started his review of the laptop in the thirty five hundred material and i would submit to the court that this is where ted sweet air judge suite looked at this case backwards with the benefit of hindsight and said you could take that piece of thirty five hundred material and you could a conversation about how the discovery would have been produced and that that conversation involved whether or not the hard drive which had been provided from the defense could in fact be loaded up or whether or not it needed to be held to the side because of the possibility of some child pornography if that conversation which i understand i think occurred with the defense wouldn't that have alerted them that somebody had to have looked at the content of the computer not necessarily on it because at that point we're now way past the time that a search warrant has been made and so sure they knew that someone at the government had looked at the computer but someone at the government was supposed to have looked at the computer it was a year after a search warrant had been  executed it makes perfect sense we're six months i forget the exact date that someone would have looked at it the question is whether nayyar was on notice that someone had looked at it earlier and no one told him that the reason they thought there might be an issue with child porn on that computer was because of  search so the answer frankly your honor is now i see my time is up and i'm happy to continue answering questions i want to have two minutes from where you're from a government thank you now please the court my name is sean buckley i represent the government here on appeal and i represented the government in connection with the proceedings before the district court the judgment of conviction in this case should be affirmed as the factual record that was a deuced during the limited remained makes clear judge suite properly denied the defendant's mid trial suppression motion for a number of reasons first the district court correctly applied the independent source doctrine all of the computer evidence on which the government relied at trial was obtained pursuant to a court authorized search of the computer at issue there is no dispute that the application for that search warrant did not rely at all on any information obtained during the brief how do you respond to the argument that the triggering event the that cost the government to seek the warrant or the suspected pornographic images which were only seen because of the search before the law i would respond by referring the court first to the supreme court's decision in mari which makes clear that the primary evil that the independent source doctrine the two prongs of the independent source doctrine are designed to combat or the so called basis for the search warrant is truly independent of any information that is gleaned in the course of the warrantless search and because of that it is not a but for an supreme court has made this clear repeatedly in nix and won some the issue is whether putting aside the question of the warrantless search the government would have had a desire to search the premises that were the subject of the warrantless search is it is it that point in time is it do you go to a point and say hypothetically in life we would have gotten a search warrant and had we known or do you look at what actually motivated the the obtaining the search warrant here and if one looks at motivation and what the factual record is are you led to the fact that there had been  information provided which then led them to you which led and led them to the search warrant certainly judge and that the second of those two scenarios that your honor just posited that would be but for  that scenario necessarily would swallow the independent source doctrine whole and that is why the test as set forth in mari and as also clarified by this court in johnson makes clear that it is not the but for causation that is at issue it is whether absent the illegal search law enforcement would have had a desire to search the subject the subject premises when you look at it from that angle the question of what prompted the decision to obtain the search warrant is not the question of timing or the fact that they encountered something that caused them to reach out to the prosecutors it is the question of what prompted the decision to seek a search warrant here were questions relating to i the validity of the f b i legal authority to have conducted the search in the first place nothing about the warrantless search influenced their desire to search it their decision to search it but the reason a search warrant was obtained was because of an expressed concern about the validity of the consent to search so under those facts the decision in johnson is controlling here the concerns about the legal authority for the warrantless search were raised by the prosecutor in johnson he once again had a warrantless search and the concerns about the validity of the authorities under which that warrantless search occurred were raised by the judge but in both instances there was a triggering event that was based soley upon concerns about the validity underlying the or the validity of the authority used to search anything in your analysis change if the subject matter that had been reviewed which caused the initial communication between  was agent kelly and and you would it change if it hadn't been child pornography but had been arms related no your honor because the issue was as the parties have stipulated and as the district court noted the entire reason that beach in cali was searching the computer was to try to find evidence arms related evidence evidence that related to materials that had been obtained in the course of the investigation specifically night vision goggles and a printout about certain firearms and that is how you know that nothing about what was uncovered in the course of the warrantless search is what actually prompted the decision to obtain a search warrant the agents similar to the agents in johnson fully intended and had ample probable cause and reason to search the premises and the only issue there was a mistake a mistake as to whether they had adequate authorities to search it and under the supreme court's decisions in trial was that material so opaque that counsel would not recognize the earlier search and then what about the executors certainly judge with respect to the march two thousand and eleven disclosure of the f t k report the government submitted that there is nothing oh peak about what is contained on the face of that report we laid out that it was i believe the third entry on the f t kay report that provided an indication that something was done to the computer as early as december of two thousand and nine that report was disclosed to the defense not not just in march two thousand and eleven but then again  fourth two thousand and twelve it was reproduced at the request of defense counsel to the defense and on march fourth two thousand and twelve more than two weeks prior to trial defense counsel indicated or confirmed in writing that he was now able to review the contents of the f t kerry report when those facts are combined with the disclosures in the janks act materials which as we noted in our brief were a very limited set of materials that stated an ambiguously that the computer was processed and a search was commenced in december two thousand and nine and the fact that those materials were produced prior five days prior to the commencement of trial those are more than sufficient to establish a basis for the district court's finding of waiver so if the good reason not to bring it sooner but i think that it still would have been perfectly acceptable for the district court to find that waiver had occurred under rule twelve given that pretrial motions to suppress had been due months prior and that the underlying materials themselves which again indicated that the search had been commenced in december two thousand and nine had been produced more than a year prior to the commencement of trial when you combine that those facts with the fact that the defense waited until not just the testimony of the cartesian but until after the testimony of the cart agent had concluded to raise their motion with the district court the district court it's a sound exercise of its discretion to find that such delay rendered their motion untimely and therefore waived their motion in addition to the waiver argument and the independent source document dr and the facts that have been a deuced at the hearing before the district court below also support an alternative theory under which to  uphold the district court's denial of the motion to suppress and that is under a theory of apparent to the word the facts below establish that the f b i when it  entered the apartment identified the wife of the defendant who resided in the apartment she identified herself as the defendant's wife to the f b i the computer  the fact that the computer was recovered from a common area of the apartment to which the wife herself had access and that the wife identified the computer provided the password and signed a consent to search form that specifically provided that she owned possessed controlled and or have access to that computer when all of those facts are considered together it is clear that they would warrant a man of reasonable caution in the belief that the consenting party the wife had access or authority over the computer i see my time has expired one last question back on the waiver question what is our standard of review on waiver it's  novo review because it's well a de novo review of the legal conclusion about the fact of the waiver but as far as judge suites factual findings about when certain things in the answer to the question about the johnson test and whether it's what actually prompted the decision or whether it's some hypothetical reconstruction of what maybe woulda coulda shoulda happened the answer is it's what actually prompted the decision that's what the johnson court said the precise language is the decision to seek the warrant may not be prompted by information gleaned from the illegal conduct now that is not  as mr buckley does that is there did the request result from information gleaned from the illegal code did it did your honor look at the way the crowd develops the agent sees what he thinks is child pornography and he calls agent buckley and that's what sets in motion and i'll address this argument about for causation that is different your honor than the first prong of johnson which is did the information view during the initial illegal search make its way into the warrant that's the first prong and i can see that we cannot meet that first prop the second prong is different and it goes to the motivation and what actually prompted the decision and there is no answer here this case is factually very different than johnson in johnson the decision to get the warrant was in no way prompted by the process of reviewing the materials themselves they had long since reviewed all the tapes and then sue a sponte the district court said wait you're introducing these tapes don't you think you should have a search warrant for that and they go and get a search warrant that is not what happens here going the  they had consent the government would have asked for more and undoubtedly would have gone well first of all your honor we don't know that that is not part of the record we don't have any agent who testified to that we don't have any agent who said they had a plan in place to get a certain us or a knowledge of the earlier that there was probable cause so that's true but that's different where in the hypothetical world of what motivated people to do anything the easiest thing to do is to look at what they actually did and why they did it your honor is assuming what they might have done if they had not gotten consent and we just don't know that there is no agent who has said that that is what he would have done and in fact the evidence doesn't really suggest that they did they didn't immediately search this computer after they got it they collected it it sat there then they started processing it they reviewed it we don't know that they would bother getting a search warrant as the court is well aware it's very common when agents discover a laptop in the course of an arrest or a search you have a search warrant that night that's not what happened here so we don't know what they would have done had they not assumed that they had valid consent without probing whether the person giving them consent had any authority to do that that  i see my time is up i was intended to further address the waiver issue but i leave that to another more i will be very brief i wanted to be clear about the f t k report because to make life hunter had done in readying the computer for its forensic search did not contain anything that agent kelly had done and it also contained a complete forensic image of the computers so we're not talking about just that one page that we're focused on now that's in the appendix we're talking about something very balloonist when you combine that with what four of two what the evidence list actually says which is simply that certain portions of the computer were added to the program it did not sufficiently put him on notice the only other thing i would say about waivers one thing that nobody has said out loud but what should be said is there's no question that the defense did not know of the basis for this motion whether perhaps they had a reasonable excuse or not were debating about for not making the motion sooner but the fact is they didn't know and they made the motion as soon as they knew the basis and this court should not just deprive them of the ability to raise these issues these are serious issues and they should be explored