one tune the appellant in this case i would like to reserve if possible five minutes for rebuttal there were several errors that were presented in appellant's brief and specifically there was an issue regarding whether the search warrant itself was valid in the st place that the state of arizona obtained and whether or not the search of the computer mr huhne tunes computer by the government pursuant to taking it from the state or basically taking a copy of it from the state was valid or whether that was an illegal search and then lastly there was a discovery violation that is really pursu nt to this court's case in boozy ak i hope i'm pronouncing it correctly so i was playing on touching on all three unless there's an issue specifically that this court wanted to focus the time on and  in st the search warrant itself the issue in the air with the search warrant was that the district court did not take out the entire air they inserted something into the search warrant in finding that there was probable cause they took out the issue that was clearly false of there being an ether net cable that supposedly connected mr huhne tunes trailer to the internet that was in the house so once my standard your view in this particular instance the district court file on factually there was no evidence of deliberate falsehood or reckless disregard for the truth and they also said it was then they tried to come up on the other hand and say i'm not only very good but if i took out these things they're still would be a problem we have because they inserted the issue of the internet i'm just saying what i'm trying to do here is i'm trying to say is there anything in what they did in that particular situation which is clearly iranians well i believe inserting the issue of the internet is clearly erroneous because the crazy loss is that they're supposed to go with the four corners of the document they're not allowed to insert something and we know from the actual sworn testimony transcripts that were given as an offer proof in this case that the detective who went to the house detective southwick he specifically did not even ask about the internet and he said that in his testimony he said i never used the word internet i asked if he was connected to her media account he said i have no idea what mediacom does i know it's a media com account i asked if he was connected to her media account i never asked him then we also have the clearly erroneous part that they said that they spoke with mr huhne t purpose is the same there's a connection he the fed is getting his connection from his mother in law whether it's done by cable or some other method is irrelevant welsh art respectfully disagree with your version of the facts i mean if you look at exactly what was said a computer was not mentioned either specifically that and again i'm reading it exactly as the transcript was of the tape recording of the conversation between detective southwick and cheryl the mother in law southwick says so do you have a router and a modem and all that and she says i honestly don't know and then he says he doesn't have his own connection out there as far as hardware for a media account and she says no he's got it connected on mine and the detective said he's got a connected on yours alright nothing was mentioned about the internet nothing was mentioned about a computer again those are guess what we're really looking at here is the district court was trying to determine whether there was evidence of deliberate fault good or reckless disregard and looking at the same thing with you're arguing now they said no there is none and they gave a reason for that and if i'm going to look at that is clearly erroneous i'm having a tough time understanding why i would  say that it was clearly erroneous that there was no evidence of that well your honor in the actual i mean that the ability to connect the two wow you would connected to what the situation was what the district court was saying there's no reason here for me to say they were trying to give a false hood to me or that they had a reckless disregard for the truth i've listened to all this and i don't think it's so and i would look at clearly erroneous about the deliberate falsehood or the reckless disregard and that's the part i can't find well just i think it's clearly erroneous because of the facts that were presented in the sworn testimony and you have detective angel who's doing the affidavit and he's representing things that he are not true clearly not true you have detective southwick saying i don't even know that i talked to detective age all i think i talked to another detective who must've talked to detective angel because i've never even met detective angel so of course there has to be his or her word said quote it is undisputed that one tunes a laptop computer was connected to the mother in was clearly eroni it was because at at the time that they were executing the search warrant they did not know that if they did not know that until months later when they checked his computer fact was on tuesday laptop computer connected to the mother in law's being of the district court you say it's clearly erroneous because it reflects knowledge found after the fact that is correct your honor not the four corners of the affidavit as the case law dictates the dic case law dictates we can't  internet connection with some other connection that's what you come down to it comes down to relevance he's connected to her media account not internet account not computer it's a media town exactly you're on a what is a media account when you raise them media account is you want to move to your nd yes we are running out of di thank you and i will definitely move on yours so the government basically just went and got a hard copy from the state of the computer they never got their own search warrant what and do with united states st johnson you don't need to explain to me all the facts here because i've read it and i've gone through it united states joe johnson says once an item in an individual possession of lawfully seized insurgent subsequent searches of that item so long as it remains in the legitimate uninterrupted position of the police may be conducted without a warrant judge the spirit of that was the fact that one spirit yeah i'm reading what was said in johnson and i one hundred percent agree with you on that but the problem is that this is a computer there's a lot of private information in this computer that the court is now acknowledg computers are different than other types of things and we have to put together to make it harder for the ruler for a computer and this so what you're asking me to do no i'm not asking you to do that i'm just distinguishing the fact that that was different because of that because of the fact that we are talking about a computer and we're talking about lots of private documents within the computer itself we're also talking about the fact that the affidavit sworn affidavit and the warrant itself prohibit did them from giving a copy prohibited so whether or not the case law says ok you can look at as many times you want the warrant they were specifically looking for these eleven files that were part of the state case that had nothing to do with the federal case and it's specifically said that's all they were looking at and that's what they did as well as information that would establish i guess like to have that but they didn't do that ok what the federal government looked for other free not involved in the state case they also looked at an extensive amount of documents and the district court's decision that they have a right to look for relevant throughout the computer that's a scary concept in computers because there's so much personal information the idea that the government can say i can look at anything i want to determine in your computer whether or not you know it's relevant to my case how else would someone conduct a search of a computer if you like to see dozens well especially if you were looking for more from some permission like who owns the news you know that kind of thing it's not by keywords  i mean basically that's the way they do the search in the testimony the forensic detective said that's the way we do a search we look we putting keywords that are pretty key words but in this case they got stuff about his job his resume photographs personal photographs they got obviously correspondence about in a state and correspondence to his office i mean i have in the sealed  of the documents that they obtained that had nothing to do with pornography that extra stuff use a trial yes it was i was the trial attorney it was used at trial and again it was used to establish that he in fact was the owner there was a violation of his privacy rights and that's why i ask you are you asking me in this case to make a different rule when it comes to computers and you know i'm not asking you i am asking you to say that there are significant privacy interests in a computer and we need significant oversight to make sure that those rights are not violated so in that respect i am looking for a new case for well judge there are cases supreme court has said we need oversight now you have to get a warrant on phones because you can't just go through a person's phones and they had said a phone is like a computer because it contains all of his personal information and so i think in the spirit of of what the supreme court has been looking at computers are to be protected just like they were protecting cell phones that we need significant oversight as to what they're allowed they're not allowed to look at anything that they want to determine its relevance i mean that's a fishing expedition that's a privacy interest there's private personal information on that that they should not be able to just look at to determine if it's relevant why don't you pause there you're running low on please the court i'm chris cabaniss on behalf of the united states government would like to address the issue that has been addressed today search searches of the defendant or the search of the defendant's laptop computer by state based on the search warrant and the fact that the federal officers did not need to get an additional search warrant judge smith is correct that once that basically this this case in large respect on the nd issue is governed by johnston and  that once they had found the child pornography and state through the state warrant that the federal officers did not act on lawfully number one because the defendant no longer had an expectation of privacy in the child porn that had been discovered and number two there was no exceeding of the scope and that's a factual finding reviewed for clear error you had asked judge smith about how we review franks the st prong and that is reviewed for clear air there was none here moving back to that st argument but also with regard to the scope on the nd argument that question is reviewed only for clear error and there was none i direct this court to footnote twelve of the government's brief it page thirty two dollars the district court also rejected the argument that the search had this is a quote rejected the argument that the search had to be limited to searching the exact contraband filed about files found by the state officers noting that it was only necessary for each side to limit the search to finding evidence of child pornography it also found the officers did not act improperly even if they inadvertently found other non contraband contraband files noting that brief perusal of the documents and this is paraphrasing during a search is permissible to ascertain their relevance and then you can you tell us can you tell us what  in terms of the scope of the search that was authorized there your honor that precise language i don't have in front of me but it authorized the search of the defendant's computer for child pornography the state search warrant did and agent knuckles testified at trial as well that he his understanding and he was the federal officer who conducted the review of the mirror drive that his understanding is that the parameters where the state search warrant so i just respectfully submit there has been no showing of concern i'm just trying to figure out what the state agents review did they review every nook and cranny of this guy's computer and saying that therefore the federal agents were allowed to do the same detective if you were a different sense from your opponent as to what i would respectfully submit that the record is contrary to what defense counsel submitting detective fiore testified at trial they found over three hundred thousand images that shows how completely and thoroughly this had been searched and that that was also not found to be unlawful in state court the  that the eleven that was the indictment well we had actually four files in count one and then i think it was six or seven files in count two which dealt with the flash drive in the st count the four videos only one was shown for a few seconds and that was i think a little girl performing fellatio on a on an adult male then we had the other charge count from the flash drive both of those were found in the father's side of the father pornography he was and that the feds went way beyond that i respectfully submit that the it's the charge counts that govern the scope of what the search warrant permitted the search warrant allowed state officers to search pursuant to that warrant when we would submit again based on the court's finding that it was not overbroad that was not a clearly erroneous determination in addition to all contraband yes so he's even though there might be just eleven acts stated need done well these other similar acts would be relevant be appropriate to be searched in one correct because the well here's an advert in the war yeah the other acts though i want to clarify the fair probability that they would find child porn in the location to be searched including all the drawling structures the th will r v and all computer equipment including huntington's laptop and his laptop was found in the mother in law's property in the r v when he was staying there so the other acts would deal with those ten or more counts that were actually there were more images in the other acts then the ten but only one was shown out of all of them  in any event the district court did not find that the officers exceeded the scope here in addition your honor had been asking about isn't the key fact the internet connection we would submit yes i would point the court to the district court's determination on page eighteen of the defendant's excerpts of what excerpts of record volume one and this is what southwick asked the question he does it to cheryl he doesn't have his own connection out there as far as a hardwire and the district court says his words hardwire it's all under yours and friedrich says no he's got it connected to mine any reasonable officer is going to interpret that as an internet connection and that's what the state judge found that's what this judge found so we would submit that it was it was not misleading at all but certainly not intentionally misleading and that's where the district court made the finding too but for the glaring inconsistency between the affidavit statement in the conversation quote the defendant makes no offer of proof to a company as allegation of deliberate falsehood or reckless disregard for the truth and that's an e r one page eighteen that same page so again we would submit that's a frank's one prong finding that was not clearly erroneous and in addition even if you excise that out there was clearly probable cause here to search the defendant's computer a laptop computer from the mother in law's property based on all of the evidence that was provided in that state search were held once an item in an individual's possession has been lawfully seized and searched subsequent searches of that item so long as it remains in the legitimate uninterrupted possession of the police may be broader perhaps unlawful search is it still proper for the federal authorities to take that same item in the gym that uninterrupted possession and look what's appropriate for the federal indictment yes but they should they can exceed the scope of the state search warrant and that's the factual finding the district made here that there did not exceed the scope of the state's search warrant and that's what's critical as well so it's the combination of hey you don't have any expectation of privacy in child pornography after it's discovered already by the state you don't have an expectation of privacy even challenge this which is what the magistrate and district court found but nd you also want to operate within the scope of the state warrant and the district court found that in footnote twelve of our brief we discuss it self smith it's like smyth or there was another there was another word that was used to the street there had been some confusion about that in the state motion hearing discusses it but there was no question about them having searched the correct property so that was not that's the st place we're talking about is it should be ok again i always hesitate to agree if i'm not looking at it but i assume you are looking at it and the state search warrant is the state search warrant as there was just one that was obtained for the apache junction but it says that they can search any and all computer records documents and materials so i mean really just they were able to go through every well in the computer you know the documents that she cites as well defense counsel i just want to mention in that same footnote we noted that the district  court also said that it was going to be admitting that contraband evidence so for example if they had located a resume through their search to look for child porn that resume wasn't admitted here so there's some a lot of and we discussed that in our brief as well there's an argument that they found x y i just want to pull up the exhibit i thought i had with the search warrant no i'm not able to locate it right now your honor but again i think that the state warrant was very broad and the feds did not exceed the state w files limits the generality of the scope well your honor i again i i'm so sorry that i don't have that in front of me to be able to look at it i would say that probable cause can be based on the totality of circumstances in addition and what is allowed to be searched the district court found that what was found here by the feds did not exceed the scope of that i had also submit that i wanted to mention too that nothing about this by the way affects count two count two was based on the flash drive found in the father's property done under a federal search warrant separate so that count would not be affected by this but in any event i would submit that the search was lawful in neither case was there a warrant in neither case was there probable cause here we have a state search warrant that authorized that search and the feds acted properly in conducting their own search ok thank you must the court has any more questions will rely on our brief and ask you to affirm  much thank you put two minutes on the clock for once count your honors i know your type you're talking about the search warrant i do have a search warrant front of me and i do agree that there's an issue because of the fact that it's specifically lists the files that the state is supposed to be looking for and i'm specifically looking at the nd page which would be the limiting language of the war well that's the problem judge is not there it's quarter to me of there is no it it won't have the problem is that the search warrant is extremely broad but i will i mean and that was one of the things that we argued was that i mean this search warrant is just extremely extremely broad front of me but then why understand that with the district court but then the issue the judge becomes the fact that then they do list the certain files so while you've got a paragraph that sounds like a standard paragraph that we're going to get any and all computers probable in all documents then we've got specifically listed files which are the eleven files that the state's torrential downpour program intercepted over the internet that he was charged with under listed files there are several very broad paragraphs no one has any documentation written or electronic showing the use of possession of or affiliation with any other peer to peer network including etc any expelled put any evidence related to ownership control or use residen argument that we're limited to files well in here well and judge i think that the fact that the state search warrant lists the specific files and lists the specific programs and so forth that it's looking at i think it does narrow it and limit it otherwise i think that it but there's a catch all category at the top the says any image or money file containing or displaying minors any sexual activity or sexual exploitation so that suggests to me they can look through the whole computer to find anything that fits that description well you have it and then we've got the limit though under the eleven files that they are asking for you to look at just for those eleven files there look they're able to look at the entire computer to find out if any image of child pornography well i did more and i understand that and i think that there's a contradiction in the warrant because of that because they've got their list of files and then they've got this huge broadness the other thing though that i would p in your brief yes your honor it is ok and now for ok i did yes remember that well and the other thing that i think is really more important though than what the search warrant says is the fact that the eight detective angels af davit specifically says only items authorized to be see would be printed out or otherwise copied ok well that they copied the entire hard drive that was not allowed and it specifically says that you can't it also further states that once the forensic analysis is complete only items relating to the offenses will be copied ok with they copied the entire hard drive after they did their forensic search that is completely against what the warrant a louse and then lastly they say none of the contents of the duplicate originals other than those which may be required for prosecution will be displayed  specifically prohibited them from copying it what page of the word are you looking for that you're on i'm specifically looking at the afa david in the affidavit in the excerpts of record is in volume to conversations you don't if you find out that it's a straight conversation you don't listen to it but you have to have the entire document otherwise you can't proceed with a criminal case and you don't need a separate wind because johnson says you don't need a separate w you just have to be careful in using what you have well and i don't follow your arguments so so specifically your honour's when we were talking about the issue of the affidavit if you look at the last page of the warrant right above the judge's signature subject to the order of the court in which the warrant was issued or any other court with which such property of things the sought to be used as evidence and so i believe that's where they incorporated the portions of the