someone used mr good dani's unsecured ip address within a thousand feet of his residence and it could have been anyone inside or outside the home on a smartphone on a laptop on a tablet sitting in his car a visitor to the house or enabled within a twenty minute period of time on march nineteenth two thousand and ten and viewing three images of child pornography fifteen months before the war the affidavit for the warrant was submitted this is not a fair probability that you're going to find the child pornography inside the house at the time that the search was conducted it's inconsistent with fourth amendment guarantees and i think that no one would want to we want the fourth amendment to say that simply because there was you have an unsecured you have an unsecured ip address should having an unsecured ip address be a get out of jail free card i mean what's the basis for an inference that there's less than a fair possibility or probability that the user is not the owner of the house who has proper access to the to the router into the wireless network me yes it's possible you can drive along and and catch somebody else's signal but i suspect that most usage of wireless networks is by the people that are expected to use the wireless network so what's the basis for deciding in this case it's not even a fair possibility that it was the home that was using his own router because what it's an unsecured network it's not at all unusual for somebody else to have been using it i found there was a dancer it isn't is it unusual that you have to tell us it would be unusual for the homeowner to be using it because the standard isn't probable cause standard it's much less than that it's hard for me to understand how there isn't at least a fair possibility that the homeowners the person is using his wireless network well it's if that establishes that establishes probable that using that unsecured network that's right in fifteen months later well now you're introducing a second factor and maybe the two combined but i'm starting here with the with the geography part that is what's the what's the be but i need to know why that is it should not be inferred that at least a reasonable possibility that is the homeowner using his own network because that's or isn't that what you have to prove here well i think when you have it equally possible that anybody in that area could have access that is equally possible is not enough no i don't think not under these circumstances that you have what is it about scandals or this rancid had makes it different it's fifteen months later it's a twenty minute period of time with somebody looking at three images which is consistent with somebody that was an accidental or not an accident but a casual browser passing by rather than somebody if there's no evidence that this was a collector of child pornography that was viewing th like the one plugged in my office and and that's what they want is there you don't snore likely right that it's still there so if you can connect it to the computer inside the home that's a lot different but you can't and you did recall something and i don't misrepresent the record that it was in the discovery or if it was a testimony that they that they they were inside the home and i'm not sure if we got to that point yet as to what they saw when they were inside the home i know they talked to mr ghani but  i think the government can also when they're faced with this situation great can they have the technology to be able to tell by going on that that that ip address they can determine if that if the access is being  conducted by coming from within the palace or if it's if it's occurring by a neighbor or somebody a passer by or somebody else and there are cases that we've cited in the reply brief where that has occurred as a factual proposition i don't deny that are in the cia certainly has capability but the information ordinarily said tain who are the service provider is the cable company phone company who oversee providing the internet service to that location and i don't think the cable company keeps track of what kind of devices attached i mean you've got a router in the house that's what creates the wireless network the ip address will get you to the router it will not necessarily get you to which device is being used to the r cie can do it but does the phone company or the cable company have records that were permit law enforcement agents to find out what the specific device was what we're talking about a couple different things one is we don't know what type of device it is it could be  think i try think we don't know if so but such week the agents do have the capability to narrow this down to whether or not it's coming from within the house or if it's coming from outside the house do they have that ability reaching back to the past and if they're doing contemporaneous surveillance i think the answer is yes but here they're based on records of something that's already taken place they can't go to the site to figure out what's being done right now and do the phone company records give n information i don't believe they do so if they don't tell me that the agents have the capability is not telling you something that's actually true is that you know what they they do have the capability to get if they're there on the scene at the time not necessarily at the time but within a short period of time they can conduct surveillance and determine much better than they did in this case whether or not that that the user is the person in the house or the person viewing child pornography is how do they do that well they've done how do they do that in retrospect you can conduct can survey once and see if you can happen in the future contemporaneously but is there any way to do that retrospective lee can you go to my house and tell me when my son was using the computer last week which computer which device he was on i don't without the computer no i don't believe you can you can do is that we have here law enforcement has information about usage through this ip address in the past i don't know anything they could do to capture what device is being used i think you're suggesting they could go to the location and try to surveil to see if something's being done in the future contemporaneously but that's something a little different well there's at least two cases that we cited there on published cases that talk about this situation where they did they did use their technology and but did they use their technology retrospectively i know they can do it if they're on the scene surveilling but what i don't think they can do and so far i haven't heard anything from you that suggests that they can't is to go back in the past and say ok we know something happened at this ip address we'll go to that location and determine what device was used or whether it was inside the house or outside the house i don't think that's physically possible i have to admit i'm not sophisticated enough to answer that question but i don't know if we want a law that says that the fourth amendment permits this type of search where we we have an unsecured network then you just ask every child pornographer in the world to make sure the networks unsecured because there's a possibility that somebody can use the network that's still risky that's a risky proposition for a child pornographer because like i said there are there are many case law enforcement does have the capability to do this it's it takes more time and it's certainly more difficult than saying going to get a warrant like they did in this case in waiting fifteen months but certainly if they had done it closer in time and had used a little more energy they could have certainly determined whether or not the it was that the person at the house was actually the person that was  been anywhere within a thousand feet of the residence it could have been a neighbor or it could have been a visitor if we don't know whether it's an actual complete p c computer or whether it's a laptop or whether it's a smartphone or whether it's a tablet and it's it's three images in a period of a very short period of time which is more consistent with somebody that is a visitor or that is a neighbor or that is in a in a car park outside or driving by rather than the person in the outside it could be a neighbor it could have been a river not a refrigerator but it could have been a handbag that you had in the house and it left fifteen fifteen months later it's not going to be there that's  it deleted then you don't know when it's going to be overlooked written and that's only when you have a p c computer too so fifteen months later this could have been anywhere i'm running out of time i just wanted to say that i also feel that the as the district court said was an extremely close issues to whether or not mr downey was in custody or not and i have outlined the reasons why i believe he was in custody in the brief opinion of agent aida vasquez who had five years experience investigating child exploitation of service none of those factors is unique or on an island in the ninth circuit and sister circuits have all found each of those three factors relevant and determining whether a fair probability exists to support a search warrant and they do here as well the first that it was an electronic crime computers have long memories ha links of cases when you press the point but a word document or a p d f document arises with the seeing text that's contained in the web page itself at that point an individual has obtained and received  view when you press print on the case itself which appears on the web interface that brings the document to you you obtain and receive that document that is what mr khatami did here or that is what someone  page twenty seven and twenty eight are that is that the website had three active links one was to hot girls and on and that link brought up ten images all of which depicted minors either nude or engaged in sexually explicit male as he was being only paint penetrated by another male that page had links to thirty four other pages many of them many of which contained images of child pornography this was a child pornography bob site a collection language that agent vazquez provided was there was because the affidavit was a marriage of both the persistence of electronic evidence as well as the fact that an individual that circuit that that's not the case what happens with individuals and this is the nature of the crime that's described by circuits throughout the country is that the nature of the crime is one that's done not openly and notoriously individuals will hoard these images that they can individuals who collect and distribute child pornography but i'm not sure i understand how it is it can be properly inferred or a pine that somebody who's on a web site and downloads three images over twelve minutes and that's some time before is somebody who collects and distributes child pornography all the opinions appear to relate to individuals who collect mr your child pornography what's the evidence that a person who's been to one web site for twelve minutes for three investigation it is believed that the person residing at the subject premises has a sexual interest in children based on my training and experience she then goes in describes the individuals with an interest in juneau and she describes the individuals who collect  distribute child pornography him correct and there is a gap between those two things and there's a gap between somebody who's looked for twelve minutes or three images and somebody who has a sexual interest in children and if you read the last involved in the possession of child pornography as evidenced by the facts that for set forth in the affidavit including the fact that one person accessed images from a web site that contains child pornography into that several of those files contain it's based on an inference that goes i think the wrong direction she is saying and i'm reading this the second paragraph twenty of the persons residing at the subject premises exhibits the common characteristics described above the someone involved in bl it is likely true that somebody who is involved in the distribution receiving possession of child pornography has gone to these websites that's not the same things that somebody who's gone to those websites is necessarily somebody example board where the on bank panel here in two thousand and six found that an individual who went to a web site that contained child pornography exhibited an interest in obtaining those images was likely to have th you for fifteen years but i think the question is do you need to have collector language in every single child pornography case involving computers and the answer there is no the court this campus court found that united states versus hey and hey the court said that miss focused inquiry in order to determine whether hay fit the profile of a collector or not but in hade the time period that had a lot was just six months here because there was a individual made from a bulletin board ten months earlier and in that case the panel found that goes to lao downloads from the bam i think that's the bulletin board again from the bams the bulletin board w sufficient to conclude that the collector of language applied and here we have three images that were downloaded in three images of a definite child pornography involving a forty five year old girl and nine to ten year old girl and a ten to twelve year old girl three images that were downloaded over a twelve minute period and the question here is whether there was sufficient evidence for the magistrate judge to conclude that a fair probability existed that child pornography would be  if good faith obviously is another way that the court can affirm in this case because they were snow fourth amendment deficiency in the warrant you don't even need to get to good faith but the court could also not even look at the fourth absolutely your honor you had a detached magistrate judge now district court judge concluded that there was no probable cause and she signed off on the warrant you found a district court judge in this case you found that there were sufficient facts to support probable cause circuit for example united states versus need him where the affidavit contains just the bare conclusion that a person who sexually molested children would possess child pornography which which talks about what is needed for somebody to be a collector and that's necessary to because in this case you've got a you've got a fifteen month gap between the warrant and when they went to seize the evidence the which there were sixteen occasions when this person made long distance calls to a entirely different type it was in a public it was in a public website it was a bulletin board which is all it's out of date now but if it was a specialized type of internet service where they went internationally to download certain i certain certain child pornography and  seven it would have taken hours to do that under the lacy case those cases are distinguishable from the situation that we have here and just to be clear what all that all that can be shown in this case is that hardcore and one was the ha ha curls in porn stars i think when you click on that it it brings up all these thumbnail images which are on your now on your computer that automatically put there by the by the web browser