court my name is ted smith an assistant united states attorney for the middle district of pennsylvania from harrisburg representing the united states who is the appellant this time around at the outset with the court permission i'd like to reserve two minutes for rebuttal ground we think the district court committed three errors here and one of which would warrant reversal but if i may i would like to approach them in the reverse  order in which their approach approached in the brief of the appellant because i think the good faith exception is the strongest argument we have what good faith argument did you make before the district court and what faith argument are you making before us i think we're making the same argument here that we made before the district court and that is that this officer the chief had every reason to believe that the warrant that he talked to the district attorney and  have been overbroad or in artful that he had every reason to believe that the affidavit that he attached to the warrant would serve and did in fact serve so the argument was it comes to fold in effect that the affidavit accompanied the war and that the actual search because haller was there was confined to the narrow scope of the affidavit correct absolutely but the problem is that particular argument wasn't brought up to the district court was it well limitations it was you know we should not look at that hybrid technically but now it seems that but look it's a little bit different that the good faith is anybody looking at both the affidavit and the warran believe that they were entitled to search for the sexual exploitation materials well different there may be some slight difference and i know my my my my opponent has has brought that to the court's attention i don't think there is any difference so great as to warrant a determination that we have not preserved the issue that we're arguing here and indeed if we hadn't preserved it i still think that would be playing error here and i think we could benefit from the plan or rule with good faith at the window when the judge made a finding that it was a general war within that finding was erroneous and i think that i think judge caldwell frankly was simply confused about what a general warrant was and seemed to believe that any overly broad warrant was a general warrant and you know he may have had some cause for confusion based on doe versus groody but this court clarified that in the lives that ok some course judge caldwell didn't have the benefit of the live out of case which held in our favor both on the second issue we raise the significance of an attached or an accompanying affidavit that is not expressly incorporated by reference but also live it ok sound good faith but but with that i think maybe that's the key issue because as i recall that's on that panel i mean the problem was i do it is just check the box and make sure that the affidavit is attached to the war and the argument against here is that the affidavit was not attached to the war it was attached to the application even though they're all part and parcel of the same document i don't know how you can make that distinction i think it's an artificial distinction it's a distinction that frankly was lost on the on the judge of the court of common pleas that denied the suppression motion on the same grounds raised here and that's a fact that weighs rather strongly in favor of a good faith determination here i mean we have a district attorney we have an officer who went to a district attorney when he didn't have to we have a trained common pleas court judge who devoted thirty six pages of writing to the suppression motions and four pages of that opinion to this same issue  reached a conclusion different from the learned united states district judge who heard the suppression motion and i think under those circumstances and indeed there's a there's a footnote there where i'm not sure my colleague's concession was warranted but this is the stuff of which good faith is made when reasonable men and women can disagree about whether there there is an adequate description of sufficiently particularize description in the warrant or when when reasonable men and women can disagree as to whether the warrant incorporated the affidavit or didn't incorporate the affidavit but it was attached and available for reference then certainly i think the good faith exception applies  the exclusionary rule is intended to deter police misconduct but but but judge indels question on good faith is there may be a different type of good faith argument that will that was not made to the district court so that you could bring up the same type of waiver claim if you were representing mr tracy that is that at the district court level you said hey look it's all part and parcel the same document we were good faith now the argument is but in fact the affidavit did accompany the warrant that's sort of ways and difficult and also the search was confined to the narrow or scope of the affidavit therefore they acted in good faith in connection with what was the narrower piece they had before my yet the affidavit rather than what was on the court and mission and now i'm understanding your question a little bit better your honor your honors and let me answer this why first of all we did raise the argument that redaction was an appropriate remedy here and that was the only remedy that this court had specifically found could could be used to cure a insufficiently particular overbroad description of property to be searched for and seized and the district court did decide that redaction was not appropriate because the district court found it was a general warrant and redaction in this court's decision united states versus christine is is really discussed in the same breath as this court's discussion of the other circuit cases that have articulated the other exception upon which we rely the unincorporated but attached affidavit exception so we think we're really there the distinction between redaction has redaction simply means the officer you can redact from the overly broad property description those items as to which there was of probable cause in the affidavit and that's really what we're saying here so the different stream redaction and the unincorporated but attached a applies if the if the warrant description is overly broad and the affidavit is being used to narrow it it cannot apply if the warrant description is overly narrow and what actually occurs is far in excess of the warrant description so in dover says groody while the affidavit asked for permission to search everybody present the warrant didn't and of the place it said the place and there was absolutely no way that anybody could find from that warrant that the magistrate who issued it had consented or agreed or authorized the search of all persons present much  less the strip search of the wife and the ten year old child perhaps accrued is a good illustration of the proposition that hard facts make bad law all the gruyere is the law and i have no trouble you know living with rudy i think come down earlier than it did and clarified that not every overbroad warrant is a general warrant and one part of what solidified a new group came out after grow i mean grow seem to support the the  purpose in the role that the that the affidavits very particular description did hear and so i mean it almost seems like we just take a step back here and you look at the application which is right on top of the warrant itself the application asked for any you know is pretty broad in terms of just that little box any items images or visual depictions representing the possible exploitation of children including videotapes report a graps and then goes out and says computers maybe you should have substituted sexual for possible sort of representing the sexual exploitation of children etc and then the affidavit doesn't say the doesn't say see attached affidavit the at the same time physically attached to this is a very detailed seven page affidavit and your point i think is that look common sense is going to tell you that they they should be going out and looking for only the things that are noted in the affidavit because they got the guy who put it all together holler at leading the team and in fact when you look back with hindsight what they did was easy actually what was talked about in phillies did last night and headed out of a ballpark well you well the purpose of the good faith exception as suggested by what you are just said is to deter police misconduct what what possibly could chief grow or excuse me chief grow learnt to holler learn from suppression of the evidence here or could any other police officer similarly situated learn from suppression in this case so as to be deterred from engaging in police misconduct the most he could learn is not to use cop talk in his property description on his warrant but it's really otherwise an exemplary warrant and i would  dd that on the face page of the warrant application and i think in pennsylvania the application of the warrant are in fact one document but on that there was some additional detail there  was a section violated every day to the statute which presumably is generally known what that is yes certainly the officers do and a specific date and the specific date was the date on which his probable cause affidavit recited this video of the the man in the child was downloaded i have two one zero seconds left if the court doesn't have any questions obviously to thank you very much good morning my name is steve rice and i represent the appellee ralph douglas tracy maybe you could start off with a softball or through to the mr smith which is working working backwards which is where he started when you look at this from a common sense perspective how can you say there wasn't good faith of the police officers under the control of paul or carrying out a search that pretty much literally complied with what was stated now but they but that was attached to the application which is part and parcel of what becomes the war part and parcel which is attached at least by some by staples to what is the war we conceded in the corporal oh that it was attached that wasn't an issue problem with the cases the argument before this court isn't the one that was presented before the district court some of the things that are being built into the good faith argument were never heard in any kind of pleading and they weren't diverted any kind of brief so oftentimes whenever you're a defendant this waiver rules apply to knock out your arguments on appeal and we believe it's perfectly appropriate here we had a different attorney before the district court a very good attorney gordons abroad who i admire greatly he presented an argument about good faith where he said hey look this is the fault of the foreman with some kind of a clerical error put yourself in the position of the district court when you're faced with that kind of argument it doesn't have legs what was this district court to do there was no basis for finding that good faith exception applied because there was an argument a potential merit that was put before it well that the are you was don't argue with don't be hyper technical about it i think that the focus was on the word possible should have been  sexual and that that made a difference and yet that was done in good faith and if it said sexual it would have been fine but yet the hyper technicality in the last cited as i have here a court you consider search warrants and evidence in a common sense manner of not hyper technically statements should not be read in isolation i mean all the case law cited does go towards look at this and see you know whether it's a fishing expedition whether someone in his position would look at it and say i've you know this is ok this is al and i have the authority isn't that you know pretty much what they i mean i think the problem to bring that on the district court had and it said explicitly in its opinion is that the police officer knew what he was doing here if you go to the affidavit he explicitly incorporates the i don't description of the warrant into the affidavit and that be as specific as possible this is an experienced police officer as indicated by the affidavit but the problem is he didn't say see attack i believe there should be something more than that but i did cite case law were i something to that effect can be sufficient well there is referenced here x additional pages attached x warrant application approved x probably cause affidavit must be attached total number of pages seven total number of pages whereas facts have been sworn in firm by written affidavit attached year two from which i found probable cause attached attached attached but the court in groody made clear and it's a police officers responsibility to have some familiarity with the law that where the incorporation occurs matters the court and rudy had noted that their words references to the affidavit in more than part of the way the public rudy was that the police officers when they went in went beyond anything that at least two people on that panel myself included thought they should be doing they should not have stripped they were looking for the father for drugs and then they strip searched the the wife and the daughter and these facts with the court is iterating right now is not something that was put in front of the district court i mean let's pretend for a moment the before the district court the comment had a verb in some kind of a pleading or it's brief hey look chief hollar was with a bunch of people here he briefed them all on the affidavit so that they knew what was going on and said this is what we're basically looking for and when the ultimately conducted the search this is all they got they didn't say that and they had the occasion to say that because groovy laid the groundwork for live aid and i would submit groupies actually a better discussion of this unincorporated but attached affidavit theory then live a delicious live ada makes a very passing reference i'm not going to say it's not a meaningful reference it certainly is and concerning this mean an issue has been coursing through both the district court's opinion and to the discussion here is about general vs overbroad warrant i'm actually surprised that there is as much of an issue about this as there is this is clearly a general warrant when you're dealing with an overbroad warrant you're asking the question basically are they looking for too much it's clear what they're looking for but they're looking for too much that's what makes it overbroad where they're looking for depictions of sexual the high court said obscenity leaves too much to the discretion of the police officer how can that be materially different from using the word exploitation and when you're leaving too much to the discretion of a police officer you're dealing with a general warrant i don't see that there's any authority to the contrary and that's why the court the district court here held as it did and now we have this new argument being presented to this court there's no question that the good faith argument is probably the issue upon which this court's decision alternately ends up being and when you look at the the government's prefer that they actually go so far as to blame the defendant in the court the district court for the lack of a development of the theories that they present here they basically say well mr tracy before the court below said no or the groovy case if the court doesn't agree with that offend its position then the should also end up being some hearing and then the government ends of saying well because the court agreed with a police position below there was no occasion to develop the record on this point the government had the occasion to do it and it didn't it's our position that it's waived in even if it isn't waived nevertheless mr tracy should prevail well what what description what had to be in here that wasn't in here if this had said items representing children engaged in pretty heavy did sexual acts as defined by section sixty three twelve of the crimes code and this is something the ciscos have weaved by the fifth surfing fest circuit in peed in what you may have had children doing nothing may have had children standing in a bucket under a shower and yet it appears to be exploited child somehow it doesn't have to be sexual acts does it or they were looking mean there was some discussion during the government's argument about gauging sixty three twelve the fines per prohibited sexual act it doesn't make any mention of exploitation and i believe if the government wanted to get it right here it would have been helpful if they'd actually define for having sexual act had the prevailing wall but yes that is in essence what he was looking for but what is alternately pernod graphy sixty three twelve doesn't say what it is well i think the whole idea of obscene material it's very this is an area that 's very difficult to describe no question but they have to be as specific as possible and that's why the courts in this area of the law has said that if you track the language of the statute which could very easily have been done here that's good enough another thing that would have been good enough is just to say what he actually was looking for this mpeg file of an adult in a child engaging in vashon a winner course it decided not to do that or he decided not to do  was that is correct oh is it the lack of the word incorporation or is it possible exploitation of those two words what makes this a general war i believe it even without the word possible it's a general warrant but the inclusion of the word possible we believe makes it a more easy case for mr tracy but to speak to the first point that your honor had made and this case is had a long life it's been about three and a half years a start in a state court we've basically raised the same issue there's no question the p a constitution is more protective and ultimately judge who ruled against us i was actually a little bit shocked whenever they asked the feds to take over my suspicion as and i don't know this to be true they want to mr tracy to get more time if you was convicted but then we had it making all argument you think they repurpose about i i don't know what to be true but i think it is entirely possible knowing the prosecutors in my county this wasn't a general warrant because in addition to the description that was provided in the description of property to be seized portion of the warrant form the warrant specified that the violation in connection with which it was being sought was a violation of section sixty three twelve c and d of the pennsylvania crimes code and that crime that section is sexual exploitation of children day is possession of child pornography but what if the items to be searched said any items images or visual depictions representing children including videotapes or photograph s you know and it's very broad and referenced the section but it's saying you're going to see these things that are indeed broader than that is that that help or hurt you well i don't think it hurts us at all i think  know we can be looking for evidence of child pornography evidence of the knowing possession of child pornography that is not in in itself child pornography very often when you look for child pornography you will also be looking for things that aren't child pornography but that suggest that the possession of the child pornography you do find is knowing so i don't think we are limited to looking only for child pornography i think the problem here was he said possible instead of sexual exploitation of children but i think the citation to the pennsylvania child pornography and sexual exploitation of children statute and the specific date on which that mpeg file was downloaded makes it not a general warrant and if you ask why you know chief holler could have done so much more the fact is he did he put it in his affidavit that he knew was and he checked the pennsylvania this court held that referenced is the same thing as incorporated by reference i don't know how he could more clearly have have signaled to the court that what i'm searching for in addition to what i've put here is a more specific description that i've put in my affidavit but certainly certainly there was good faith in the district court committed error in finding that there was a thank you thank you case as well argue with take it under advisement we're going to take a just a five minute recess before the last case which is the chen case it counsel wants to be prepared will be back and