here this morning we're familiar with your cases counsel you should feel free in the limited time available to you to get straight to the heart of your argument we've read your briefs authority cited in your briefs and at least portions of the record so we're familiar with your case if the read when the red light shines it's time to stop if you're answering a question from the court you can finish your answer but please be mindful of our time place david wolf and this is being z who a lawyer with my office who is working with me she was one of my students in my law school she's here from beijing china and she's practicing in the  want they can make any argument that is supported by the record and as i understand it they are arguing that not even reasonable suspicion is required  both of those issues as i understand it mr wolf are in play whether reasonable suspicion is required and if so whether reasonable success for suspicion was present here yes or and in fact a similar circumstance happened to gutterman where there was a big discussion as to whether or not it was raised and it could be gone into but i'll go into it with the court certainly when mr two set was returning to this country just to set was the united states citizen his file had been flagged based upon an investigation that began in october of two thousand and fourteen this was december twenty one two thousand and fourteen he came in and because the file was flagged he was subjected to the basic search any individual crossing our borders is allowed to was required to submit to if approached when he was approached they were asked to look at his property they searched his suitcases and  found nothing that was contraband so we've held that the border agents can search luggage without suspicion mail without crew members quarters on a vessel which we explained is a home for fourth amendment purposes without suspicion the supreme court has held that you can disassemble a fuel tank and a car to search for contraband at the border why is it that reasonable suspicion would be required for  forensic search of electronic devices well when you speak of disassembling a gas tank i think that's what the court talked about in riley in explaining the distinctions and exactly what was said in riley is why there should be a case about a search incident to arrest but then the united states it's not a border search case absolutely i understand that but all of the precedents i'm talking about are border searches and we've you know reasonable suspicion even required for those ok and what i'm trying to express to the court that there is no reasonable suspicion or anything necessary for the initial search and or stand where the court is going when they went on mr to said electronic equipment didn't find anything but they were instructed based upon an investigation that had gone on that actually revealed nothing tangential to child pornography agent for directed them to detain the property and send it off to be forensically searched the reason i went to riley and one of them that i think riley is significant is because a computer is not your grandfather's briefcase which was subject to all of the scrutiny that the court just talked about with you can read all the private letters and all the things that are contained in it why would we if we say you information protected by the fourth amendment the the targets of the fourth amendment by the founders your papers and your affects will not once more private in your papers or effects then your mail and if you think you're right at the time of the founding the fourth amendment would have understood papers and effects things like your mail your home as receiving the highest protection but border searches have always been different as i understand it and i'm having a hard time understanding why this electronic device would get higher protection than we would give a home or mail when you say your home or your luggage well when you say a home you're talking about a boat that's attempting to come into the community they can't take this person lived right we ruled that that because the crew member lived there this was his quote living quarters it was for further fourth amendment purposes his home it was his home and it was attempting to come into the united states where you had the right to search to make sure that it wasn't bringing anything in that was contraband right and i understand that like trying  devise can bring in child pornography which is contraband right the question in other cases is does that child pornography exist on the computer itself has it been deleted and and discard and you have to go into the un allocated space so that you can make a determination as to whether child pornography was ever possessed was it possessed by him was it possessed intentionally all of those sorts of things but you can't go to karl two sets house and search his house what you're attempting to waste we held in the crewmembers case you could because it was at the border right that was a child porn search it was a search for contraband in his living quarters on the vessel occurred at the at the border and we know reasonable suspicion required right that is what you held yes but he was trying to bring his house into this country and there's a difference there you have the right to search the briefcase and the different things that are apparent and when you go through the computer during that initial atlas trying to bring electronic devices into this country right and they made a cursory search of it they turned it on they examined the content of the things that were apparent to them you know judge all this stuff is historical also you're not where i'm not saying that they are limited to searching the computer for the eleven days that you were gone they're allowed to turn on the computer and search it in order to get to the detailed information from a forensic analysis that's the thing that we believe is has to be susceptible to so modicum of of a standard like probable cause in the fourth amendment and if it's a reasonable suspicion which a number of the other courts have adopted then so be it in the question becomes was there a reasonable suspicion here if the courts premis is that we can search and do any type of search that we want to because of the precedent that was established based upon people walking into the country without these types of devices in fact homeland security has changed their standard said you can't search electronic devices with a forensic with a friends in two thousand and eighteen with forensic acquit mn unless you have a reasonable suspicion so they've come into the twenty first century from when people used to come in carrying the things that were somewhere else is that in the record or i don't i didn't see that when you're talking about homeland security right  well in two thousand eight hundred they changed the standards for a basic search and a and advanced search dealing specifically with this particular no way to know that is that in the device directive ok so i'm just alluding to the fact that they have gone farther than it than it was before simply because of the change in circumstance i think that congressman allude specifically to what justice scalia had said when he said computers allow us to carry the very papers one stored at the home and it would be foolish to contend that the privacy  afforded by the fourth amendment has been unaffected by the advance of technology that's in the current case and that's that is certainly the premise that we're operating under if in fact the court is saying that you have the opportunity well you can't do a cavity search you can't do a strip search and three are well but to be honest with you judge a strip search seems to me to be more of a puritan gosh i don't want to be seen naked when in fact they can't they can't look into your mind if they look into your electronic equipment and do the type of strip search that forensic analysis does they're learning all of your intimacies your medical history your proclivities and all of the things that seem to be so vehemently protected by the fourth amendment when just taking your clothes off seems to be something that you need to do a second step with and if that's the case what you're doing is stripping the person that owns that computer bare and seeing not only his body but his thoughts his inner most interactions and the things that are most private to him and that were the target as we discussed a moment ago the fourth court my name is elizabeth macbeth appearing on behalf of the united states searches that occur at our border are reasonable under the fourth amendment by virtue of the simple fact that they are occurring at our border and this is true because that's two border patrol officers on the ground nationally and it says that it could it differentiates between a search and an advanced search in advance searches where you have to a forensic search here essentially and it does say that custom border patrol officers should have reasonable suspicion before forensically examining something for contraband or you can forensically examine if there's any type of national security concern but we have two responses to that policy existing one it's sort of a belt and suspenders approach that c b p has taken in light it's not surprising given that the addition directive to officers on the ground on the policy that they're going to take does not affect fourth amendment analysis it doesn't affect our fourth amendment jurisprudence and that  here when you apply this court's precedent and the supreme court precedent while this court hasn't consider the precise issue here when you apply that precedent it compels the conclusion here that no reasonable suspicion  below agreed to the reasonable suspicion standard why is why on appeal is the government going beyond that europe you're right your honor we did not we felt strongly then as we feel strongly now that reasonable suspicion existed and so i believe it was our thought that for judicial efficiency and judicial economy there was no need for the court below to engage in a wood as a complex legal analysis now that we are on appeal we recognize that this is a constitutional a complex constitutional issue that's percolate percolating among the circuits and night circuit has ruled the fifth circuit is examining there's a case pending right now in the fourth circuit and whatever the district court ruled in this case was not going to be presidential but now that we're here whatever we rule could be precedential if we if we if we said in a published opinion right that's right you're out and that's why we wanted to present the squarely in front of the court because our district courts do need guidance on this this is an issue we're seeing a lot and so we would ask if this court is inclined to provide guidance in this case to the district courts around our circuit i think that that would be very helpful and i don't mean to i never mean to offend our district judges but they don't make law right that's one difference right that is so if this court could provide guidance that that would be helpful and i think to provide that guidance this court has the precedent it needs to hold no reasonable suspicion is necessary here and i surely agree we don't know but it why did the government take the position why didn't the government argue to the district judge the same thing that they're arguing on appeal i think that the best answer i can give you your honor is that we felt like the it was at that point it was irrelevant because under whatever standard the court applied something i never quite know is the decision so you said once again on appeal you decided to to take the position a no no justification whatsoever as required essentially is the position right now and is that a position that is adopted by the u s attorney in this district is that a d o j in other words how does the government decide what is going to argue today so when this case made it to this court different government agencies contacted us this is on their radar radar c b p contact contacted us h s i contacted us and they said this is very important to us and they let us they made us aware of these other cases around the country we have talked to these agencies we have also talked to those that d o j the people who do our cyber crime and and that is that no reasonable suspicion is necessary for a forensic exam of the computer or any electronic media at the border now to let me just make sure i understand what that position and so any american citizen who travels abroad and returns to the united states for whatever reason is subject to having their electronic devices detained in this case for three weeks and forensically searched without any justification necessary correct and that is true because we are at the border and that is true because the government the reason for the burger order search exception which is exists prior to the fourth amendment is that we society has a right to protect ourselves protect ourselves from contraband entering this country and protect ourselves against people who wish to do us harm now if i understand that our presidents have said the same is true when you're when a citizen is coming back to the country and there their motor vehicle is kept for some period disassembled and search for contraband right that is cracked the citizen might really need that motor vehicle right right and  we said the same about mail coming into the united states right correct we said the same thing about the crew members for fourth amendment purposes yes yes all searched without reasonable suspicion all searched without reason only time the circuit is ever held reasonable suspicion is required is for a strip search and base of search of an individual's body so that right that is correct and that is the same thing with the supreme court as well this court no court has ever required reasonable suspicion for a property search and that's because again for the night right correct i'm sorry i misspoke i meant the circuit or the supreme court her applications the what's app application in the court the court found that the good faith exception applied in that case doesn't provide too much guidance but it was an issue that was brief and argued currently there is a case on point in the fourth circuit kohls use in that case has been orally argued and we're waiting for an opinion and in that case the facts are on force as this one that there was a forensic exam at offsite forensic exam of a computer  someone actually that person was leaving the country now if this court wants i said that the solicitor general you think but you're not sure has as consulted if we rule the way you ask us to rule i would be troubled at the solicitor general comes back and says oh you know i'm not i'm not down with that particular approach are we sure that the solicitor general is also in accord with your approach so we personally have not spoken with the solicitor general's office we spoke to someone from d o j who told us that they have spoken to the solicitors solicitor general's office we know that we are all making the same argument around the country there is a mandate to us to take this position i would be surprised if the solicitor general changes course and if this case or if this issue eventually ends up in the supreme court and are you saying the directive that when now in january that requires reasonable suspicion are you saying that that is an effort to comply or to insulate the issue from problems until a definitive court ruling is made on the issue i think that's exactly right and there's actually not dissension but there's a difference of opinion among the different agencies so h s i has not adopted that but it certainly is going to tell border agents to have reasonable suspicion if that's the law of the ninth circuit and that's a huge portion of the border of the united states  arrest and that is the critical distinction here a riley does spend a good portion of time explaining how cell phones and also computers hold can hold more information and can perhaps hold more sensitive information than say a briefcase but even those points of differentiation do not matter in this border search context in fact it only heightens the interest for border patrol officers to be able to search these devices what are the outer limits from your point of view of how long the government can hold somebody comes through with an i pad or whatever they have manual look i want to look a little further want to have a forensic check can they held it for six months a year when do they have to get their head back right there's a statute that controls that explains to border agents what's what they can and can't do so they must by statute decide within five days if they're going to give it back or conduct a search once that decision has been made within five days they have thirty days to conduct their search and make a decision if they are going to at that point seize it so if they find contraband they can seize it or an so this case started with the private sector zoom which is a money transmittal company became aware that there was a group of individuals who are sending small amounts of money to individuals and different countries the philippines thailand and the dominican republic in this raised a red flag for them they contacted nick nick and yahoo and they contacted yahoo because this group of individuals had yahoo email account yahoo then conducted their own internal investigation and they found that one of those emails that zoom had given them had at one point possessed distributed or received child pornography and they also discovered that the person who created that particular e mail account the i love you so much email account had given yahoo a phone number that resolved to the philippines they also discovered that this particular e mail account had communicated with another email account with the name carl age h t at yahoo dot com so yahoo then goes back to nick nick nick nick notifies the cyber crime cent i then sends a summons to western union because they want to look at this i love you email account they want to know who has this email account and communicating with who has been sending money to this email account and i know that i am power just can i just ask your question because people are on it well i believe so so the cyber crime has i was notified the defendant wasn't in this country and he has i believe dual citizenship but we knew he was not here he was in europe and so because of that we knew he also lived here so we knew he would be coming back into the country so there was a flag in this was a matter of months when we learned this from western union and when he reentered the can i see my atlanta is the busiest airport in the world and is one of the busiest international airports in the world and has a substantial number of people coming in that's number one number two mr two set was not randomly stopped he was targeted based upon the information the government attempted to share with you just a moment ago in the motion to suppress hearing i mean that information is just plain wrong we were not a den of five by the original xoom investigation we were not identified by yahoo we in fact when i asked the court when i asked the witness do you have any information that karl to set ever possessed or received child pornography in any manner she said at this time no and this was after of course the seizure were done at a motion to suppress did you ever have any indication that he communicated in any respect or had any connection to the i love you so much e mail address involving transmitting child pornography no is the answer that question is isn't it understand what you're saying and you know we can debate reasonable suspicion but the fact that you're saying it was targeted isn't it for fourth amendment purposes isn't  better that there was reason to do it whether you think the reason was good enough or not as opposed to just randomly doing it isn't it better that he was targeted in some way yes well he was targeted you know for the government it's better he was targeted and that flag was put on his passport because they didn't have probable cause and they couldn't get a warrant to search him because they had no nexus between karl to set and child pornography whatsoever and that's what the agent testified to at the hearing and with regard to that image the image was but was up from a reasonable suspicion standpoint if reason suspicion is the test and that's a debate of course in this case but it isn't it better that the government have some reasons that's why you have reasonable suspicion test right in yes and i didn't get an opportunity in much detail to explore that but there are reasonable suspicion was based upon nothing they had a hunch they a hunch and that's all that they had that's number one number two you have to remember with the probable cause or fourth amendment analysis you have to have a reasonable suspicion if that's the standard that not only that the person possessed the the  contraband that you were looking to it has to be at the time that the search occurred and it has to be in the at the location that you're trying to search and in this case there is no evidence of electronic anything by karl to set until he got to the airport and they took his computer so it's a two prong test and if you have a reasonable suspicion that somebody is dealing drugs that doesn't mean you can go to his house unless you can establish a nexus between the drug dealing that you have probable cause for and the search of his home and in this case we just don't have it  well and with regard to the motor vehicle the motive what about the fact that they had there were three small payments made to this outfit from we're going to this outfit judge in fact the testimony at the hearing was we don't know if the entity an individual or a that that the recipient was an individual or an entity they don't know where it went they don't have the western union transmittal forms they have no evidence other than what somebody told somebody else  telephone is connected to the i love you so much e mail address which had a single image there was no evidence of transmitting child pornography of quote unconfirmed child pornography so so what we have here is a situation where he was targeted they took his stuff and they looked at it and they did a strip search of his computer without probable cause and without a reasonable suspicion thank you thank you we have your