your honor in the st instance i would is that the court affirmed the concept that the appellant in this case had a reasonable expectation of privacy disputing that but it is clear that under this circuit's prior case law in live shits and other cases all across the country that mr wilbert had the right to challenge this search under the authority that this is a private communication and and the nature of the peer to peer platform will has allowed him to dispute this search i know that this is an issue that the government believes remains open but i would ask that this court close that issue in this decision and make it clear going forward that the citizens of the united states do have an expectation of privacy in these kinds of communications so that would be my st request of the court in this particular case  moving on from that issue it is the appellant's position that the warrant in this particular case was facially deficient in a number of ways into specific ways actually the st being the description of the premises to be searched and the nd being the description of the the content of the omega  chat whether or not it sufficiently described what was viewed and whether that the contents of that description would give the magistrate judge argento in this case sufficient cause to issue the warrant or sufficient probable cause to issue the warrant it is the appellant's position that the warrant was over as a multi level building which leads one to believe that there is an upper apartment in the words that somehow the apartments are stacked on top of the other that is not exactly the for agents for when they're reporting i think that it has to describe the exact area so if the in this individual rents a room in a building  it should describe that he went a room in the building not an apartment if for example a well i think that the the magistrate is limited by that description that's in the warrant and the magistrate in the application the magistrate could not use whatever they think or interpret they're supposed to rely on what's contained in the application itself in the four corners of the application and it's and the whole purpose of this is to make sure that law enforcement is precise that law enforcement does not mislead or provide information to our magistrates that is less than accurate because if it's the whole system will rely on you know using their own information or their own beliefs and their own interpretations then it breaks down the whole warrant system what  walberg that i don't know i was not trial counsel i did not see the premises they did not travel to rochester to see what it is i'm relying on what is contained in the application that it's set up and if there was no one else well the application well the application says that this search is to include it indicates the above mentioned properties described as being a green and white colored multilevel residential building it identifies the number of the building it tells you where the building is it tells you that there's an entrance door that it's attached to another building it's attached to six  dollars and then it says this search is to include the up stairs apartment the subject of this invest of of six hundred and thirty four dollars garson avenue the subject of this investigation and any outbuildings real property vehicles and curtilage utilized by the subject at the mention location so it's a list of parents position that this description is overbroad because what they were looking for was  computer or apparently some kind of computer information so when they're talking about all of these things it's our position that it was overbroad and what should have happened is to include right well i mean they obviously know what the building's like because they went there and took a picture so they have some idea of what this building is all about and what area he may or may not occupy know it's not does not appear to be in the record in addition your honor i would move on to whether or not the other description of what was in the in the i can gather and from the record that's before the court and therefore she could not possibly make a neutral and detached determination as to what was on the image or in the image that was the big one the basis for the application what's here is that the the  officer stated that the image was of a prepaid best and female between four years of age and seven years of age who was engaged in oral sex with a canine and the question is this is his interpretation of what the image is when you read the testimony of the various witnesses who was called for the suppression hearing there  various interpretations of what this image contained and so it would it would be a pilot's argument that the magistrate could never have couldn't have made an independent determination of what the image was and whether in fact it contains what the officer indicated it contained because it was not attached to the warrant so it's our of the th circuit that talk about that the magistrate must have performed a neutral and detached function and how do you how do you perform a neutral and detached function if what you're relying on is a description of an image i mean this is a unique situation because you know as we all know you know pornography when you see it pornography there's a lot of questions to what this image really showed the the officer who testified at the suppression hearing said well it was a girl and she was lying on a bed and it was a dog near her vagina and it was someone else who said well it was a girl with a dog i am not sure what it was but he specifically says in his application that this child was engaged in oral sex with a canine and and then in the suppression hearing he backtracks and says well i don't know that to the gauged in oral sex with the canine but that's what he put in his application so i think this has to be looked at carefully your honour's and i would ask that the court reverse marriage and what it consisted of judge feldman in his reporting recommendation indicated that he had the opportunity to review this image during the suppression hearing and he indicated that he agreed with the description which investigator strato provided with respect to what the image showed specifically he made the finding that it was a reasonably accurate i guess  description of what the image contained there was no question that this image constituted child pornography and suspicion more specifically was what would be sufficient as probable cause in order for investigative serato to depend upon the way he applied for the search warrant before judge argento the crux of the issue here is whether or not that search warrant is supported by adequate probable cause and the simple answer is yes it was turning to counsel's other issue with respect to the description i think this argument stems from a more narrow conception of buildings and apartments certainly for those of us who live in upstate new york apartments can can occur anywhere they can occur in residential buildings they can occur in the ranch house they can occur in a i don't victorian house where you have an apartment that has a bedroom a kitchen and everything along those lines so when judge argento is permit presented with the application and specifically issues a search warrant that says six hundred and thirty four dollars carson avenue apartment up that specifies the residence for mr wilbert himself was this was this is not an apartment as we down staters would understand it to be i don't believe so your honor i believe this was probably in a residential home you know next to that was like part of it is being know five floors or whatever so but it is correct to describe it as a multi level building because it's more than one level and the apartment occupies the space upstairs indeed  were downloaded during the time period or which accompany omega captured were a part of the suppression hearing and the image that constituted child pornography is the one image which is referred to as  dollars and then there's another one that was downloaded nd was in it that was it was it was downloaded nd that as investigators serato explained during the course of the hearing the great i don't i don't think so because only one image was described and the one image which everyone had seen throughout the proceedings that was relied upon for and that's operating image that forms the basis for probable cause for the for the search warrant and then ultimately though your honour's to the extent that i would agree and judge pooler it wasn't precise however the review function here is not not for pure precision or exact meant but the question is does probable cause report the search warrant and even  gave the date as to when this upload occurred talked about a mr wilbert background and circumstances put all this information in front of judge argento discuss the image that was concerning what's significant here is that judge feldman specifically said he agreed with investigators read those a description of what this image thinking and i don't think there's any way you can look at this image and not state that it is not child pornography or it doesn't form the basis for adequate probable cause to support an investigation or a search for child cannot be my correct in remembering that the  cost it's not handcuff your honor per se but she appears to be bound there is some sort of binding and her arms are crossed on her head so you know even if  simulated backs and that's why there's also only a question of probable cause at this point it's not a question of guilt or non guilt exactly your honor so based on all the circumstances and based on the tally of the circumstances here  the district court certainly did not air in denying mr wilbert motion for suppression based on the search warrant and unless your honour's have any further questions the government will rest on   and there even at the testimony of the the witness from and see m e c indicated that you know it was a girl with a dog he didn't specify anything and and it's my impression that really the officer here well went well beyond what what he should have in making this application and clearly  there was no reason for him not to specify the correct time because he had the correct time he knew the correct time and it's it's it's just you looking at the whole application