we're happy to have you in god we can do it this way sorry we can't do it in person we go by the regular rules fifteen minutes aside i'll do the timing i suggest that you do so as well so you don't get united states the appellant in this case at issue in this appeal is whether seventy thousand images of child pornography should be suppressed and a criminal prosecution dismissed the district court below held that the child pornography should be suppressed for three reasons st on the ground that there was no probable cause supporting the search nd holding that the good faith exemption was an applicable and rd based on a finding that the follow up search warrant was tainted i am here asking this court to reverse on all three grounds starting with the probable cause determination the district court focus very happily on one inference that the and experience none of which bear on his understanding of sexual you know abuse relating to you know video on a computer how do you distinguish zimmerman and john john i submit it easier on or at the john casted for the proposition that if a law enforcement officer wanted a judge to draw a link between child molestation and possession of child pornography then the law enforcement officer had to state expressly in the affidavit that there is such a well yes your honor and in this case the law enforcement officer did state his training and experience and it was clear that he was a very experienced law enforcement officer but he also made clear to the magistrate that his training was  based the list of training was in other areas of the law it was later one percent happy so how does his experience provide and how is that evidence of the link it doesn't do it as well because your honor he was a very experienced state trooper and had been a straight state trooper for a long time the magistrate i'm sorry or six years and that was laid out in the affidavit honestly and truthfully and the magistrate certainly was within their right to consider that in deciding whether the inference could be drawn but i submit your honor is that this inference is also a common sense and friends it is one that i submit anyone off the street would also draw and the magistrate had the right to consider that as well but in zimmerman and john i mean ju barry's tone in zimmerman kind of surprised me there wasn't just that common sense common sense isn't enough there has to be probable cause requires there to be a belief of criminal activity  t common sense doesn't do it well and your honor i submit that zimmerman had very unique facts and zimmerman stands for the proposition that there was no probable cause under the facts of zimmerman but look at what the zimmerman facts were your honor zimmerman there was child molestation that happened outside of the home the only child to the home was one episode of streaming adult pornography that had happened ten months later in this attack was at least there was at least streaming here we had moments station and what in the facts of this case makes you say aha there's images on a computer i'm glad you asked your honor because there is a significant evidence leading to a probable cause determination in addition to the entrance first there was recent and lengthy sexual abuse of two boys in the home and that is critical occurred in the home for two and a half years leading up to really be eve of the search warrant there were efforts by the defendant to purchase used children's underwear on e bay under false pretenses there were efforts to solicit photos and videos of children in their underwear which shows your honor and i think this is critical that there is nothing in the law that says a trooper has to see contraband in order to search for contraband the trooper just had to be able to lay out probable cause to believe that contraband would be found out in this case he laid out probable cause showing that this defend seeking visual stimulation online with photos and videos of children in underwear including pictures of the inside of the underwear and that he made efforts to communicate directly with young boys under false pretenses and that he was communicating with pedophiles about children's i do are all of this happening while he was sexually abusing brothers in his home and keeping their sort of underwear as mementos considering his efforts to look on line and seek visual stimulation alito dissented in zimmerman and justice alito wrote the court's opinion in the in the davis case the same year actually that john came down so what about good faith and the way we perceive good faith today let's say certainly although the government is absolutely arguing that there was probable cause to support this warrant a lot of the government's argument does come down to good faith this case honestly is why the good faith exemption exists this is trooper who included the entrance the link between child molestation and collection of child pornography and his affidavit as john says he must he laid out probable cause including connecting criminal activity in the home which is him and said he must and he presented the affidavit to a neutral magistrate he laid out his training experience and put it all in there and then it was up to the neutral and detached magistrate to decide whether there was probable cause the case law in this area your honors i submit is really all over the place we've got the th circuit saying that there's an intuitive connection which got the nd circuit saying that although there was a probable cause in that case her saying he had movies and the majority thought the movies were bad movies that dissent actually thought that they were probably good movies that maybe the child would want to watch but that that provided the link there so that that's really a distinct case most of the other cases you know had a problem i guess justice sotomayor found good faith in it you know case but but they have the link both zimmerman and john you know you would think that good faith would apply because one  the postal inspector saying this is what happens another the investigate of the persons who commit offenses and orders were issued and yet we found no good faith because it was so unreasonable i don't know how we how do we say today that good faith applies is actually quite analogous all the evidence indicated that the defendant was seeking to bring a girl who was home to show her movies but there is no evidence about what kind of movies that's not the case where there that agent didn't see contraband but there was an dishy of contraband it's actually quite analogous to our case and i submit that that this case is different from zimmerman because in zimmerman there was no connection to the home or insufficient connection to the home that was child molestation outside of the home the only evidence linking anything to the home was that streaming of adult pornography ten months earlier in the in the defendant's home in the defendant pornography and child erotica tends to be retained by people because it is contraband and so difficult to obtain but also your honor that was streamed which is very different than what the defendant was doing in this case this defendant was asking people  connections on e bay to send him videos and images to him that is very different from streaming something that you find online i didn't say videos i think it said photo i could be wrong your honor and i would be happy to go back and check but my recollection of my notes say that he was looking for photos and videos of children in the underwear and photos of the inside of the i see it send it picture of the inside what do you do with the fact that the didn't seek to search for child pornography but was simply looking for evidence connecting the home to the two victims of the child molestation so the warrant was granted authorization to find children's underwear children's bathing suits photos of the victim's d n a that sort of thing be searching agents would absolutely have found many many electronic devices in the home and would have found the hard drive hidden under the mattress that would hadn't it would have led to a search of that hard drive and the devices and fifty thousand of the pornographic images were found on that hard drive your honor if we find the good faith would apply then does the does the other at these look at computers once you seize them i mean there's some there's some some authority for the prospers ition that we don't need to get another warrant it really depends on the circumstances your honor in this case i case i don't believe it was necessary because the original warrant did ask to search alectryon devices going back to judgment bells question if we agree with you on the good faith argument you've made on the st warrant then the rd warrant it becomes academic right we don't yes or no need to do a separate analysis for that that's crap i'd like to ask you know the question is well you talked about a couple of out of circuit cases and if we disagree with you on the probable cause would submit that that this case is calling out for a good faith exemption there is nothing that would indicate to a law enforcement officer that this warrant was unlawful because it laid out not only be entrance the agent wanted the magistrate to draw but all of the evidence supporting the indications that criminal activity happened in the home and that this defendant was seeking online photos children in their underwear to feed his compulsion to show that he was sexually attracted to young children and that he was seeking visual stimulation and one final point if i may before i step aside there is a low threshold for a magistrate when deciding if there's probable cause it's whether there is a fair probability that evidence would be found and in addition to that when it's being reviewed the magistrate's decision is to be given great deference i submit that we have launched over the low threshold and when you consider the fact that the magistrate's decision should be given great deference the search warrant should be permitted to stand but because we give great deference or because it's a low threshold then shouldn't the officers be very vigilant to make sure that all the necessary ingredients are there supporting probable cause that is what we want from our law enforcement officers and i believe that is what the trooper did in this case but ultimately the reason we have magistrates in this kind of scenario as opposed to troopers just deciding on their own when to search it so that there would be a neutral detached rd party looking at what the trooper believed established probable cause to make that determination as the magistrate did a good faith analysis under cement and john  very unique cases i hesitate to say they run afoul of leon but they are very limited to their very unique facts they do not stand for the broad proposition that the district court h in this case they it should be clarified that they apply to their narrow narrow facts and that cases that have different factions be considered on their merit important differences from zimmerman in zimmerman and it was adult pornography that had been stream to ten months earlier as i mentioned earlier there is no law out there that says adult pornography tends to be held child pornography and child erotica does tend to be held by its collectors because it is contraband and so difficult to obtain in addition your honor in this case it was there were photos that this defendant was trying to have sen to him not streaming but actually sent to him which is very different and which again makes it clear that he was intending to hold it and that as digital evidence it would not be stale because it would still be on caesar i've listened to this and my colleague ms williams correctly going south that these are all all unique cases every one of them and this one stands on its own  judge papper off authored an excellent opinion which covered all of the issues quite comprehensively i'm sorry having a little problem says the record and rendered a justified and justifiable decision on the decisions on the issues presented here today but the focus rests upon today the focus rests upon the prosecution's argument especially those rates in the reply brief how is the deterrent value of the good faith that the whole deterrent value how is it served slap his wrists basically when when he put all this forth and probably had and had a good faith belief that you know where there's smoke there's fire that you know that probably child pornography was there well he's making  inference that's not based upon anything specific set forth in the four corners of the affidavit he has not specified anything any kind of study any anything that says that there is a direct  it's not a warrant case really talked about the good faith rule that the simple isolated negligence the deterrent value of suppression is is diminished and the exclusion cannot pay its way said we really need to conduct a cost benefit analysis in applying the good faith exception and here i'm just having trouble and here the course does extraordinarily high when trooper galena as engaged in an effort that seems to be unbridled in the way he approaches this case when you look at the affidavit of probable cause it contains references to what other people are saying which are clearly calculated to inflame an enrage reviewing authority i mean there's a reference to what someone else said and it's unclear whether it's attributable to mr caesar were to someone else when you read  goes well beyond that he is specifically engaged in a in an approach on this which just defies explanation in terms of reasonable lists of the way he wanted to ye st i phone wasn't invented until two thousand and seven all those computer age has just expanded me maybe now we think it's more just common sense inference than than they did back then well it in any case we can look back and see what was revealed and justify it but that isn't the way we're supposed to review these cases we're supposed to review these cases on the basis of whether or not there was probable cause set forth within the four corners of the in this particular case trooper building a did not specify in any specific way that there is a direct connection between child abuse and child pornography he did not cite any studies he did not provide any basis and is extensive representations concerning his experiences that would justify him making that kind of claim well when in fairness though you started off by saying all these cases different facts and of course that's true now we're talking of course about the evidence here and that may suggest that the defendant has a sexual interest the media depicting children there's nothing like that in zimmerman or job no so there's not enough to distinguish those cases from this particular case at least on the issue of good faith i don't believe so i submit that in this particular case there's an awful lot of excessive information that has nothing to do with child pornography even the charge itself that was being pursued at the time the affidavits were created said nothing about child pornography it was specific related to assessing the charge of sexual assault of minors that he wants for that he wants a photo of children in their underwear doesn't that lead you to believe  child pornography you're making a leap of logic that we're all supposed not to make when we're engaged in this kind of legal analysis but how about i mean mullet molesting these children and what he did to them in his  bed do you think this is all he says oh obviously he just want to children in their underwear because you know he has stock in carter her something i mean you've got to be realistic well realistic is not the same as generalizing which is what is going on here trooper dilema maybe restates also talks about applying common sense so well common sense doesn't necessarily mean that you can establish that connection either common sense says that certain things happen but in any given case how do you know that specifically applicable here  fact you don't know that probable cause doesn't require you to know requires a belief and common sense can can support a belief cannot that's true but in this case assault on a minor is by its nature a one on one personal crime we're talking about child pornography which is a possessory offense and making that probable cause inference because one who sexually assaults minors is necessarily engaged in possessing pornography is not the same thing inductive reasoning suffers and an objective infirmity where you lack in the affidavit of probable cause specific actual training or knowledge to support the inference that's being made the danger in deploying that inference allows attribution of cause and effect without demonstrating a real basis very much mom the last  ubiquitous to that everybody is on the internet for all kinds of reasons that doesn't necessarily mean that they are collecting child pornography and to make that assumption is just woefully incorrect there's a lack of particularity in this affidavit with respect to this pacific issue there is that there's nothing in the four corners of the affidavit that makes a direct connection or even a sufficient cause perhaps you could focus on good faith i scratch my head just a little bit it seems like the district court didn't really deal too much with john and zimmerman insofar as the the good faith issue goes is there a problem i don't believe so i think the judge papper did address the the issue directly i believe that he found that given what was obviously lacking in happens opinion in the affidavit of probable cause is the basis upon which he was finding that his actions were well outside the scope of what he should be doing in submitting an affidavit of probable cause he did not identify with particularity with specificity sufficient facts to even approach the magistrate with the  found that he was grossly negligent and that was a specific factual finding the judge papper made and i think that's justified by the record over and above that we take a look at what trooper galena did in this case and we go back to the same thing his overreach was extensive he included things in the affidavit that were inappropriate he made assumptions and inferences that were not permissible  did not provide specific information regarding the continuing nature of this offense he did not tie specific facts to the affidavit but used very broad sweeping generalizations to support his allegations and then in the rd affidavit he used the additional information that he leveraged from securing the electronic communication devices as a way to continue to interview despite mr caesar's specific requests that they stop the interview and of the points of analysis is the actions of the officer are also subject to review and in this case that's a significant portion of why it and he specifically noted and while the government said the trooper galena was being proper and zealous in his approach judge kaplan found exactly the opposite and he was justified  can you tell us what the status of the state court charges are against your client yes i'm glad you brought that up your honor presently mr caesar has been convicted of sexual assault of a minor in chester county that case is pending sentencing the butler county case seems to be on whole we don't really have a lot of information on that other than it is presently pending i do note that in conclusion police work particularly with respect to the search warrant applications are fact based statements and they must offer the right requisite protections for the individuals liberty interests prosecution is protected paramedics to the contrary promotes permissiveness that undermines our press precious constitutional safeguards and i would hope that the court would honor those you we'll hear from ms williams i would like to use my rebuttal time to address the claim that this trooper was out to get the defendant i submit that whether or not he was and it's our position that of course he was not he this case you would have to be comfortable with the fact that this questioning happened after the search warrant was signed after the search was executed and find that retroactively it prevented the good faith exception from applying and as you said judge shikaris correctly it's an objective standard that analysis looks at whether a reasonably well trained law enforcement officer would find that the search warrant was unlawful there is nothing in the record indicating that objective play a reasonably well trained law enforcement officer would have any issue with executing this search warrant as it was written why would he include in his affidavit comments made by someone else to him that  e lewd to say the least and would make you want to look further might might in and independently if they were his statements but they weren't his statements it was something  someone sent to him and when you read it you're not really sure what it is why i mean that was gratuitous your honor i submit it was not gratuitous because it showed the tone of the conversations as your honor said it made clear that the defendant was not seeking pictures of children in underwear because he had an interest in the brand of underwear he was seeking pictures of children in underwear in order to satisfy his sexual interest in children that's why the full exchange is relevant and the trooper and no way  indicated that those lewd statements were by the defendant but made it clear that it was an exchange and finally your honour's i would just like to bring you back again to the standard of her view which i think is key and this case in deciding probable cause there is a low threshold for an a magistrate and on appeal great deference is given to the magistrates decision in addition as the court  in conversations with my opponent it really is a bit of a balancing when you look at the good faith exemption analysis looks at whether similar conduct by law enforcement officers would be deterred in the future and in this case i s does not result in any deterrence very similarly to judge pointis dissent in john at worst this was a mistake by a law enforcement officer and similar mistakes would not be deterred through suppression of the law