of the point of poet on this matter i'm aware that your honors all read the brief and the briefing has been quite extensive in this case there are a number of issues and a lot of depositions and other evidence that have that were submitted and i'm not going to summarize my entire brief there's one point that i want to make and just one point and then if there's no questions i'll take a seat i'm sorry i need to begin by saying i reserve five minutes for a bottle apologize about that the one point that i want to make is what's at stake today is whether we have an expectation of privacy tar hard drives this issue has already been decided by the supreme court and by many other courts cell phones and computers and i pads and i pads contain the privacies of life there's no question about that the defendants are still in possession of my client's hard drives they think that's ok because they need copies of the hard dr tarnal through the case out because there's no explicit case that says they're not allowed to keep copies of the hard drive copies of the hard drive and a hard drive or the same thing that's why they're called clones and that's what's at stake here today if if the court does not rule in our favor the police will continue to keep people's hard drives even after you not sue under michigan law to get the hard drives returned or the copies return i'm not sure i follow that like i agree with you it's your property so why can't you sue to get it back what we did then it's a th amendment seizure is it is it because in this context right you're going after after this specific officer versus the custodian of a profit so just walk me through this you're suing officer elvis and you're alleging he committed a th amendment violation both at the beginning and end for lack of a better way of describing right and other defendants but all right let's just go with him for a nd because he's the front center i think all so but to overcome that you have to overcome qualified immunity whereas if you sue to simply get your property back under meshing on seems to me a much different show am i wrong i don't know if you're wrong or not i haven't researched that particular michigan law what i do know is that the th amendment goes to the copying of the contents of the devices and it goes really more to your claim against officer mckay then you're climbing against officer  and he's asking i think if there's a procedure and your michigan law to which you could have sought to retrieve the copies of your devices in the copies i don't believe there they got a warrant on the front right on the back and the prosecutor just directed us to make copies some are right about that no you know there's one person who says without any substantiation that a prosecutor told him to make copies but that's st of all that's completely unsubstantiated and what is that relevant i mean whether a prosecutor you know i'm just responding to that i mean because the prosecutor has has inferi nothing to do with the  a completely the prosecutor can tell the police to do something all day long and if it's unconstitutional to plead wrong about the facts so i thought that what happened is they dismissed the case without prejudice they said they were going to continue to investigate because at the time they initially searched the hard drive on the phone they found images that they thought were under age amongst other things and so at the end i thought what happened is the prosecutor said we're distressing without prejudice will decide if we're going to finally dismiss said and then this is where the maybe i'm putting facts together to don't belong together copy the hard drives it will make it his station i'm putting in some words but i thought that was kind of the gift of the story in my rom that's the gist of the story from the police perspective they claim that the reason they had to do this was to look for additional evidence to their end of it in one of the contour there's no evidence to support it but wait there is that there is evidence to support that they believe there was images on the phone you're not disputing that there were images that i haven't seen any images that claim to be underage while they they perceive them to be under a bed but he said they were nineteen dollars twenty two cents but he date thought they were underage they it seems to me if they thought they were under age they would have a reason to investigate then they should get a warrant for that purpose  you asked me was the most important case the most important issue here is that after the case was dismissed after they knew they had the wrong guy after they knew that the subpoena was based on subpoenaing the wrong person their arrogance and ego required them to keep it to try to catch him on something else so after the judge said given this property back they want copied it because they want to get him on something else and i thought oh you're just want to get rid of the copy get the copper back or exactly that's what my motion for summary judgment was for give us our considered a seizure i may have missed this can i ask one more question night i agree with judge givens i would have thought the initial so i misperceived it as well but why not sue under the due process clause perhaps we should've but at the time it didn't seem that that was the appropriate way to go this seemed to be more of a th amendment understand what he's saying and yes and about clearly established like you can't point us to a case basically that sad as i mean i think it sounds to me like you might have a due process where i don't know i'd have to think it through but my what i'm struggling with is what th amendment case says you can't do this if they have probable cause it's in their possession right to there's no seizure because they already have it right  you made a mistake you got you've got to back off now if you think you got something else based on that bed and that supposed good faith mistake you could get a new warrant and say you know what this has nothing to do with extorting the little girl but we think we finally we found some child pornography here which is which in my opinion is utter nonsense it's nothing more than we got to get him on something because otherwise our egos are going to be hurt and we're going to have to admit we got the wrong guy i mean let me just make sure i understand and make sure you understand the implications no what i'm saying is that's what they're saying and even if they're right in that even if they're right that they got there through good faith why did they make the copies they knew they had the wrong guy they knew the warrant had misinformation and they knew a judge dismissed the case and said given because i think that they thought there was evidence potentially of other illegal activity on the hard drive and i thought they ought to keep it so they could do further investigation respective different matters now whether they could or could do that in the section three context what matters is that the law whether or not the law was clearly i'm sorry to interrupt you but what are you relying on him pray what because i'm looking at it and i i don't converse lee any search or seizure that took place after me what page i'm sorry if you can tell me in our bottle it's  fifty nine ok let's go over here again beginning with converse lee ok where once they know they're in the wrong residence you've got to give up now if you think you're not to answer your st question if once you get a warrant to go into somebody's house because you think there's drugs there you break through the door traumatize the family and then realized oh what's there's no drugs here we've got misinformation but you think you see some child pornography there you can you can take it if you really feel it's appropriate but you're going to have to get a new warrant to search hard rights based on what you think you just found you can't rely on an old warrant that you know was based on a mistake that you know you only obtained through misinformation on an affidavit based on a case that a judge dismissed and ordered the return of that property you can't go then  copy those hard drives and desperately try to come up with old must be child pornography and the biggest proof that that's not science is they haven't charged him with that haven't even tried  that seems to be the remedy he wants and that seems to be pretty good way of resolving this is how matter and relieving your officers from possible damages exposure and so on it's of worth of me if what he really wants is that it's against the wrong people if his true issue is that the items shouldn't have been campin that decision was made by a prosecutor who's not involved in this case a copy right  took the direction from paul walton who's the chief assistant prosecutor for oakland county a separate division both of that's an elected prosecutor an elected sheriff oh wait let's just assume it's illegal if a prosecutor tells an officer to do something illegal they have to do it they don't have to do it if they if they do it's illegal they don't do it but there's no there's no law that has been cited by anybody here that a prosecutor who's in charge of a criminal investigation at that point in time what's wrong with his analogy to pray which is pray says once you know and he quoted the right things converse lee anything after seizure that took place after the officers knew or reasonably should have known that they were in the wrong residence would no longer be protected by qualified immunity so at this point you know he's not the guy you know everything was botched when you put this guy through how and now you're at this point i mean why isn't that directly on point  the the first thing is that the that the distinction is this far is knowing you have the wrong guy they didn't they weren't concerned they were convinced they didn't know for certain that they had the wrong guy and then because that's why they dismiss d without prejudice for further investigation that's what the prosecutor said at the mean if you went to a judge what would your probable cause be because this seems i agree with judge givens i'd be l just seems more problematic but let's leave that aside per nd what would your probable cause be to keep it if you're dismissing it without prejudice in conceding right there was some evidence that they didn't he didn't communicate with this young child in that window where the communications allegedly occurred and then in this the screen name or user name i'm very technologically savvy but the anonymous f l so what would be your probable cause to go ahead and map someone's phone especially after arrival well the point when the obtain the information it was valid in the st place because it was a valid warrant there was a mistake as far as a user id but now we know it's not valid right but they still have that information you don't warrant didn't exist on any of his devices and they were searching for information about his contacts with this fourteen year old amber feels i particular woman you don't like  girl you know mikey kline that they found that on his devices do you know well but they found information that would corroborate that claim when they were injured when the best part of their investigation where they found that he might have had that he arguably had some images of under as a huge votes that being disputed and you know when their it when girls in similar poses and conversations with other girls asking them for concerned about in the st place he had nothing to do with amber feels i understand but as a police officer if you're investigating something you're investigating the allegations that amber fields made and you find these devices that have don't find drugs that you see chopper not graffiti instead let's assume it's not on a computer they're just images sitting out there in plain view that you don't have to obtain a new war the the connection because in my in my head in this case one thing you don't find that one thing you see something else that you think might be the subject of another criminal investigation but you just sees the evidence so that having a warrant to do that might be the other evidence that having a warrant to do so with a distinction i think is that you know if you if you have a warrant for drugs and you go in there and you see that's why i don't see that the analogy of if you look for drugs and you find child pornography why isn't that the same well they were looking for child pornography and they found what they thought was child pornography she had never subsequently charged this plaintiff with it i think the prosecutor's off they don't have any use for the work we're somewhat off track here because we're talking who are the defendants in this case and that's the issue where these are may all be valid points i'm not suggesting but but not no different in this case is may be your stronger point that i think more that point than i did your other poll well and i guess at the end of the that's when the came it comes down to a qualified immunity analysis because even even if just putting the other issues because again you're dealing with copying information that you obtain and the you're saying is this i'm sorry to interrupt you but what you're saying is this is the general phrase he general and the more specific situation is different here doesn't support criminal activity i mean i don't i haven't i'm not a prosecutor i'm not a police officer i can't tell you what point they make that determination and what the point in time that it would be returned and  the i don't think is going to turn it in this case because this is been ongoing litigation been ongoing and if that's the only thing the plaintiffs counsel's looking for is the return of the copy of these of these devices you know that hasn't been a discussion until this but i am confident that i can call the people the prosecutor's office and explain to them what that six circuit has indicated and that they should be zero return the copies of these things they probably would would do that as as plaintiff's counsel can jump to the most practical solution is quickly as perhaps they should but if that's really what this case is a battle i really think probably it could be resolved sounds like it could be i don't disagree with you but there's always been a monetary component to the plaintiff's claims and as far as i've known and the you know the defendants are not going to pay him money under the circumstances of this case what he told us understand i'm just i didn't care about it but certainly that was not the focus of his argument and so if that's changed and we can have a conversation after the afterwards but is far is the claims that exist in this case the defendants that are here i don't see anything and i don't see any evidence that the misidentification of the username as far as oldest goes was anything more than a mistake it's clear the case but he is the undersheriff he reports to sheriff to shart there's nothing that allows his decisions to be final on behalf of the sheriff's department let alone oakland county so the attempt to try to bootstrap seem to be analytically where i thought we might be this morning but i think it is a close question as to whether there might be whether elvis was merely negligent whether you know in the stack or whether think that the the you know in order for him them to attack just behavior you know the standard you know the plaintiff must make this is under the new thread that the size of the cell on a spreadsheet that was pulled up would have to have been expanded in order to see the full username and i don't see that the the failure to expand a cell in a spreadsheet as something more than a mistake or at most negligent  you know again it's been characterized as a mistake and plaintiff's by plan some counsel and that's all but in my opinion it really exists i see my time is up i thank you for allowing me to speak thank you i just want to be very clear about something we're not giving up our claims against tells us that was very clear in our briefing we believe that there's enough on the record to survive the mere negligence standard you said it's a close call it of not mere negligence that's  totality of your evidence because what is substantial evidence for me it's a good question i don't know the answer to that but i have a position that it i would think the our our position on that is that when you have a spreadsheet in front of you and you're going after somebody for a very very serious crime then you have to take into account what you're trying to do what what the goal is here how serious the crime is how serious your actions are about to be i get all that i  get the officers made a mistake is the question that that i would struggle with is why isn't that the equivalence of negligence and why doesn't substantial evidence i mean you have to as we said in bottler in other cases you that culpability in other words of the mental state itself someone told him something else something that gets you over the hump some piece of evidence you can point to th changes it from negligence directly to the fact that he lied during his deposition about what he saw in the cells and actually attach what you see when you st open the stretchy and you don't see anonymous you see anonyma so he had to open it at least a little bit we know he's lying about question at there becomes if you're going to go going to warrant for somebody should me open it up and actually care that you're going to you're about to go break somebody's door down green and use your name on the thing they were both cut off at a about the screen yeah anonyma that's all you could see in the cell when you open it it says anonymous or anonymous f l he never bothered opening it the question is if you're going to travel to new york break somebody's door open seas all their stuff charge them with  they haven't walked away as a sex offender for the rest of his life for the rest of multiple lives shouldn't you open it up to make sure you're actually getting the right guy is that near negligence or is that reckless disregard considering what you're doing so the problem is everything you did there at what you're saying is what he should have done and could have done it right but you're not going to the mental state the key is what the mental state is in other words did he is there some evidence it seems like the same evidence could support negligence and reckless disregard of the question is what tips the line what you're saying is the serious nature of it that doesn't tip the med that doesn't change the mental state well i think it does because if it's something small then you're not going to be as worried about it  if it's something which is going to require a lot of time money and energy to travel across state lines and go bring somebody back from the york and it's something that you should take into consideration so my point is i'm not willing to forego that i want to get back to one other thing immunity on that invalid warrant has nothing to do with the fact that whatever evidence they got from that warrant such as these supposed under age pictures for which he was never charged or even investigated would have been suppressed you want to keep those things you've got to get another warrant we've got case law there's a there's a lot of case law print i think is particularly on point that says you're not allowed to keep it once you know you got the wrong guy and in this case it's even worse judge her now told them to return the property the district prosecutor that added ask mr patterson we could that's what a big part of this lawsuit is all about and they've already been ordered to do that twice judge her now before he denied my motion told them return the property i'm not sure i thought he was about to grant my motion when he said that it sounded like he was return the property which is exactly my motion was for but your motions denied and they still kept the bad faith in other words in order for it to be qualified immunity you got to have good faith i don't know if there's a better why would you go back in its car now to you know for some relief for their failure to add here to his order because he entered a final judgment denying my motion it was a very strange you have a y qualified immunity is different than whether they get keep your hard drive and so the question is if you can get a copy back you go ahead take that and then we can solve the qualified immunity pro been ordered to return the twenty's and they haven't done it they don't care the only way they're going to care is if it's a written order well as as a judge givens and i just said it if they were ordered you're using the word ordered that has connotations and if they disobey  order you can see contempt that i guess i can try that but one judge turn no closed out the case and denied my motion my motion was asking for the return of the property he denied that motion then said return the property i didn't really variation if that's what the case is about then why did they do it they were ordered to return twice why haven't they done up to opposing counsel as well i used to do this practicing well your honor at this point i think it's important to have the chase long at this point if we don't have going they're going to keep doing this you could lose the case and qualified immunity grounds but they could still this is what i think judges i agree with judge tyler at some point there some disconnect between all the judges in this case and the lawyers all the  back and but maybe they're saying but we can't grant you relief under qualified immunity but they should give your property back and maybe some judges are actually ordering it and no one's following up on that i think if you go back to tara now and say look you told them to give us property back the state court judge told them to give us the property back and you might not even have to go back to tarnish yet might just be able to have a conversation with opposing counsel and get your client most immunity we may or may not say what the law is and that's different than what they did is right a courts the courts seem to do that a lot but i don't i don't think that's appropriate in this case we need we need laws we generally are not seeking but i would suggest that perhaps you could work it out on your own as well