they please the court my name is matthew own and operate a successful concrete designed this in the federal district court for the district of delaware mr padlock was convicted of failure update a sex offender registration possession of child pornography attempted production of child pornography attempt to arguments so rather than have you waste any of the precious time here that you provided i'd make a suggestion here and this is not to preempt in any way either of my colleagues or you for that matter explore that question cause which led to the issuance of the year warrants mr petty i thought he was entitled to a frank's hearing because he made a substantial preliminary showing the affidavit supporting the warrant contained  seems crafted as a whole to give the impression that mr pabulum back is is more devious than he is is more scheming than he is and was a more recent sex offender than he actually was why does it matter if he met her in this country or in russia i think there's a general perception that if you were meeting russian women online traveling to russia and bring her home to marry her without having met her before there's a certain scandalous  transaction i think that's creating the impression that he has essentially got himself a mail order bride makes the affidavit look as though there they found a more i guess a more deviant mark and are other misstatements i think it's also important to know that the way the affidavits crafted in paragraphs one and three i think very clearly suggests that mr pabulum back committed sexual offenses against the child child child molestation very close in time but the disposition occurred later that's correct in the warrant in that respect is factually true the convictions did occur when the warrant says they occurred however i think that it carefully omits the fact these offenses both occurred in early one thousand nine hundred seven through nine hundred ninety nine and i think that the impression that is created is the mr pavel act was a long term continuing sex offender rather than somebody who had to wear the conduct occurred more than ten years ago isn't you stronger argument here mr what's not in this affidavit in application as opposed to your suggestion about some false leads that we can a may not be material yes you're on i think that the what the affidavit is missing most notably is a description of the images that were allegedly the child pornography and that l issues of the warrants let me ask you one question about the information that the magistrate had obviously the affidavit was they internal police memorandum that is also in the record part of what officer carver who then spoke to the athlete nancy's group and this information is travelled through the several several steps before it gets that a straight and to the extent that the reference to child pornography can warrant but we're not even close in this case to having the images themselves either present it would describe that's correct your honor i think i realize that's a softball to you but i'm going to be interested in hearing from the government well i think that it is problematic that the magistrate had nothing even approaching a description of these images because like i said that is a non delicate will duty that the magistrate has to fulfill to say we have enough here before us that we can issue this warrants  t well what's the role of the combination of the information that was in the affidavit the description that was provided about the images and the information about the prior convictions even if he either one of them alone wouldn't have been sufficient got the two combined right and i think that that is somewhat exemplary of the way this case proceeded as a whole and that you substitute pornography that had been viewed on the computer concrete release isn't there also a question as to the nature of his prior criminal record in heat isn't the nature of the charges a con which he was convict here a question for purposes of whether or not they are somehow to preponderate to make a stronger case for probable cause here no i think that is no i think that's precisely what just the sort of my through the help of colleagues i'm sure but he would seem to speak to this you know my recollection of the drug case is not sufficient to opine on that at the moment  to us and review i think that standing alone it doesn't mean very much i think that i think that in combination of the factors that the affiant was hoping that it would produce the effect say ok it looks possible to me that this person has been given child pornography but i don't think that is the way the law is supposed to be administered i think that the evidence that he was using child prodigy had to be sufficient combination of the convictions that show sexual proclivities at least at one point in time with the descriptions that were available he's saying it's irrelevant the fact of the convictions is simply irrelevant has to make the magistrates job was to consider what the images may have been and whether they were child pornography not to consider the character of mr pavel act and whether he seemed like the kind of person who made in your child pornography i don't think that was a proper grounds on which to uphold the warrant in z tell me your best case for the proposition that prior convictions for sexual molestation of minors has such inferential of logical fallacy falso yes really fascinating thank you your honor it's not something that's based on precedent it's just based on a simple logical argument that i think you know or any cases really speak to that issue one cases on that topic because it's not really an appropriate way to attain a search warrant from a magistrate especially in a case like this where the person's prior history will be so loaded there's the general perception that sex offenders will at some point perhaps there will have to write on this topic and you've mentioned a couple of guideposts for us you know going forward bases you have any others and the other things that you that you think should be sort of a describes images of girls twelve to fifteen pretty young yes and the word describes them elsewhere in the paragraph is child pornography that if the words nude or lascivious poses had been added to that paragraph that would have been a nod but absent those words it doesn't pass muster well i think that even those words are somewhat conclusory the third certain uses the das factors to determine whether an image is child pornography and it's important because not every image of a new child or a new human of any kind constitutes pornography and it is a somewhat complicated don't like what you have to concede that it does move the ball down field a bit more than what we have right i'm not sure what you mean by kick that kicks the ball down field i'm sorry  closer to the sufficiency yes it certainly would do the term serious i think would be important it's much more descriptive in child pornography and it also demonstrates some knowledge of the standard that they're hoping to meet res affidavit here there's a definition provided in the front of child erotica that is broader than the test for child pornography in the third circuit under doest and so the only indication we have of what the after the informant was  conclusion that these images were progress in this definition and otherwise we know very little about what standard they were using and whether or not an image qualifies as pornography i think it's a delicate and somewhat complicated test so there's no looking to some states actuary violation but it doesn't even over that that's correct the delaware has laws as to as there are federal laws as well relating to x child exploitation images  and as i understand it the standard for what modifies the child pornography is roughly the same as under the federal standard they have a broader definition for something that they call child erotica but that is not what was issue in the charges against mr paddock thank you we'll have you back on rebuttal mr miller said that that the real issue with the search warrant is that there is not and of enough of a description of the images and that is therefore fatal to the problem cause analysis and points to the d factors that there should been some analysis of the das factors but i just want to put this in context first this is the president judge of the superior we're looking at a state warrant for dealing in child pornography  as far as i can tell just checked again last night the city delaware has an adopted the das test for defining what is the lascivious exhibition the genitals are it's let's put the garden back side tell us if you would and that's what we're looking at so if you started the beginning you begin with a tip that comes in and october of two thousand and eight to the sex offender registration you're not the child predator task force of child pornography the relevance of offender that's the first thing that we know and that he's at this office this concrete technology office and he's viewing what the affiant describes as child pornography now what's the basis for this tip it's a non anonymous tip it's reasonably detailed if you read the follow up paragraphs are reliable and there's a basis for the knowledge the individuals we know are familiar with the business one identifies the owners of the business and would you agree that the mere fact that the c i is known were can be identified still does nothing to elaborate upon what specifically constitutes child without after what in this case was believed to be child we're not sure what i would agree with that so it really doesn't add anything if the problem here is what constitutes child pornography not standing along that paragraph the fact that they have a basis of knowledge standing alone doesn't add anything it just shows that there's reason to believe that they're in a position to see this but the attack here the problem here is not whether we believe the cia or not the problem is what did the c i saw what they say they remember seeing and what the detective who did the interviews not took the initial tip but did the interviews said they told him and then what he told the athlete on who was not the person who did the so we have child pornography and b it is it is a description it's the statutory term it's not devoid of meaning i think this court has made clear in some of its recent opinions that it would like to see more detail magistrate should have more detail certainly but that comes two years after this search warrants issued and i think what we do see there it's important to note though that in make of it we're talking the court is talking about a better practice or even perhaps  less we already have it in hand there weren't even be a need for a war it's not always the case and it's not the case in this instance that we have it in hand or have even seen it and there in the peer peer contacts which was the case in boston correct the caisson vosburgh the case and shields the case in a number of other circuits that we saw we saw cases in a number of other circuits for the proposition courts really haven't required proof at the probable cause stage of any actual access to an image now in this case we know he's accessing images and i think everyone agrees that there are pornographic images the question is whether they're adults or children and that's different from those that's different from shields where there was no evidence whatsoever that the defendants had access to any image trying to access a dummy image created by an undercover agent there was no image at all now if that's the only link he's ever clicked on there may not be any child pornography on his computer so the courts haven't required that level of circuit in twenty eleven but the description it was from a repairman that was a twelve year old girl undressing to a state of complete unity in a bedroom that's better than what we have here because elisa's nudity but nudity we know alone is insufficient for of the court said that there's common sense of court when you look at all the facts that this computer might contain child pornography so why the affidavit certainly could be much better and little we're talking about  enough and nudity is itself a descriptive term and is more specific in its descriptive nature than it is the more general child pornography would you agree i would agree and if you look at the state statute the states actually actually use the term prohibited sex act and then it lists a bunch of different perhaps and sex acts one of those is the serious exhibition of generals but in the context of what i've seen through the case law and in the case of reciting our brief is courts haven't drawn a bright line at the probable cause stage between what might be termed child erotica and what is actually child pornography particularly when we're talking about tips from the public provided to the police they don't have an opportunity to look at the images themselves they're limited to what information they can get from the public and the other surrounding circumstances so i think in this scenario the totality of the circumstances becomes very important oh would this affidavit have been sufficient had the description provided by the second  confidential informant about his perception of the ages of the children in the images not in there if all you had was the first informant saying sixteen eighteen which is kind of at the upper range and you didn't have the description of probably fifteen year olds provided by the second c i would there have been a problem that you might not be able to get over well it's even weaker for sure and no doubt i mean every ticket when you're talking about the little bit that we have in the description area every little bit counts twelve to fifteen is much better than sixteen to eighteen obviously but we're in this gray area of a serious exhibition first of all those words of course don't appear well i'm there in the statute as is and dealing in child pornography is that is the statue or one thing is interesting about the leader case it was an appeal so this we're never got to consider that but the court said no i think the we the the judge said i think we ought to be using the statutory terms all this as a sex act well actually we did lose that the texas here did use the statutory term child pornography it's not devoid of meaning is what i'm saying it's not irrelevant but you have to look at everything else is the affidavit even really the sort of violation of the dover statute think it does of dealing in child pornography because i think i think it's asserting that he may have possessed or produced child pornography and give it granted it is not the strongest affidavit but what it's saying is that they saw him these are two different people being interviewed in different kazan's and discussing different occasions of him using these computers to view sexually suggest they don't you use the term sexually suggestive images they talk about how he's getting on in the affidavit one of the cia says it appeared that he was getting them by e mail which is important because one of those out of davis is for an e mail service one and identifies the e mail they talk about one of the talks about the trip to the philippines and the fact that he was going to me quote unquote females we don't know if they're minors or adults ok and he's taken a camera and he just bought a camera for this that holds an hour and a half of video  unpublished opinion but one where that approach was taken and courts across the country have done this on occasion they simply said look the problem caused questions to close call or it's doubtful i think judge jordan might use the to suggest that they weren't acting in a vegetable reasonable manner that they should have known that there's no way this affidavit contained probable cause and they were acting in bad faith and i don't think we have that here just based on the case law actually even if you look at the existence of some case law from other circuits there is a basis to conclude that this might be enough  now and certainly in many other circuits that an inadequate description of the images alone is fatal to a warrant with a totality the circumstances might otherwise suggest that there is probable cause and if you look you go back to the knox case in this court where this court held that the lascivious acts of for there to be able sylvia's exhibition of the genitals the images need not even be nude and that was on a sufficiency of the evidence challenge following a conviction so that was a much higher burden of proof in the court was saying even if they're not nude you could still have lascivious exhibition that's still the law of the circuit if you go from there and look at some of the other decisions that cite in the brief courts haven't drawn a bright line a lot of courts have said there's actually probable cause if you have images that are just amount of child erotica one of the cases i want to point out and again i know i'm reaching in citing or providing you with cites to unpublished decisions well you're certainly permitted to do that we're just not permitted to do that well i'm doing it because i'm looking for similar factual scenarios i could be helpful in terms of rationale and us versus rove a two thousand and eleven decision out of the fifth circuit the brother there an adult brother saw pictures of boys in his brother's closet ages four to sixteen the description was partially nude or in various states of undress and the court said you don't need to show specific individual ised evidence of possession at the probable cause if so that's the law and that's fairly illustrative of some of the cases come down across the country that's the law and certainly you have bennington and high work from this court that said the agents acted in good faith under similar circumstances i think in harburg or the description was teenager younger girls in gauging in sexually explicit conduct i'm sorry or teenager younger girls engaging in sexual explicit conduct that was a description that's a lot that's a little bit better than child pornography but actually under twenty to fifty six it talks about sexually explicit conduct so again it's just back to the statutory term provide a description of a twelve year old girl undressing to a state of complete nudity in a bedroom thats it so in terms of good faith we are in a situation where the defense is saying now you should i say my time is up i'm sorry but it's a we're in a situation where you should be distinguishing a problem caused age between child erotic and child pornography and no one should be able a lot rely on it if you get it wrong it isn't a problem where the information that is not shared with the magistrate in any detail is derives from a lay person who has perhaps characterizes child that person may not make the same distinctions between child erotic and child pornography that you and i was the person with legal training the person who's train the circumstances in deciding to do that and you can look to the trial testimony here and you don't just have the trial testimony and raves in the trial testimony of the detective who interviewed them who says now they told me they saw sexually explicit activity with children i think was actually supposed activity involving children whether they were as forthcoming on the stand in front of a jury as they might have been with him is something we don't know  certainly he's saying that's what they told me when i interviewed them and then that's what he told detective scooping the appian so at the end of the day the affiant is going on information she's received from another law enforcement age and relying upon that there's no reason to think that she intentionally falsified that information or was even reckless based on everything else that they have i would like and my time's up i'm sorry it is very used to say you're on our time that will give you kno thank you i would like to go back to whether you can consider his past history also of also is a bit of a different case because in falso there was no indication the guy was viewing pornography of any type as old as it is a bonus coming in here well i think here is the issue it's undisputed he was viewing some pornography whether it's adult or child that's what's missing and also the the fallacy and also is to say well a guy let's just take another example a guy likes playing basketball he must have images on his computer of people playing basketball that's the fallacy the difference here is the defendant was the type of person who had images that related to sexual matters be they had or a child so false was a little bit different there and i would point the court to its decisions and other contacts in the drug context for instance  where it is said that you know prior crimes are not irrelevant to the probable cause determination i'm just looking for the quote and i think it's an important point because we're talking we're talking of the totality of the circumstance the defense would be asking the court to say you can't you can't consider other crimes at the probable cause stage i thinking consider everything at the probable cause stage it's u same general nature and i think that's what judge then judge sotomayor was getting at falso since the crimes were in the pattern and think the crimes are close enough in terms of their nature but here you've got that additional evidence that he is a computer reviewer of some type of pornography so i think it holds some value i wouldn't hang my hat on it standing in isolation but it does add to the mix thank you very much thank you you are  even when one of the ones that he cited as being particularly flimsy they said it was a girl completely on dressing in her bedroom and i think that's under the factors that determine whether something is child pornography or not i think that setting is very important i think being in a bedroom undressing is surely suggestive setting and it also underscores that there is this subjective element and whether or not something constitutes pornography and that's seven us three forty five the court wrote it cannot be disputed that it magistrate or similar judicial authority not and c m e syrup police officer must determine the presence of probable cause in an application for a search warrant and i think that what we've seen here is that there was a confidential informant who worked at mr pagel x kids business who described something a child pornography we're not sure what it was the  reiterated that statement in the magistrate was reduced largely to rubberstamp he had no ability to make any kind of determination as to what these images are were and whether they were child pornography and the basically should know better she should she's an experienced officer who should have known that she had to describe a violation of the statute in order for probable cause to be found it is you know turning to the second issue that we discussed different views or any is there any evidence that the  this concludes your description the something the child pornography from somebody who wasn't qualified to make that determination and then the fact that i guess mr pabulum had the prior sex conviction that's the whole totality of the circumstances and i think even if it is appropriate to consider his status as a sex offender i don't think you can take you the whole way there's nothing else in this warrant that helps to support probable cause i think the most persuasive element is the status