security is a technician of some sort has no law enforcement authority no authority to carry a weapon and his work station is very close proximity to where the highest officials apartment homeland security meet yet he shows up for work that day with a loaded pistol naf pepper spray  get up and the handheld radio radio communication so on the surface it would sing to me that the only unreasonable thing to do would not to have been to get a search w i understand the court's reasoning on that i think there is a plausible explanation as to why mr winky had those items on him and i don't think that the conclusion without more which is our issue here that those possession of those items automatically meant an attempt to as the special agent man put it in affidavit assassinate kidnap high level officials of the department of homeland security they don't have to  small it's very tiny on about the size of a credit card was the size but in a way the point there's a just making is that when you put that together why is that just not sufficient given the fact that right across from those office experience to indicate that mr winky had any items in his residence one hundred miles away in martinsburg west virginia to indicate that he was conspiring with others which is what the warrant affidavit says to kidnap or assassinate high level members of the part of homeland security or impersonate a police officer well let me let me i think i understand that you are primarily concerned about the strength of in his possession two handheld radio communication devices yes ma'am he probably wouldn't need them to communicate with people in the building so why would it not be inferable and the only reason these which i find really disturbing the only reason these items were detected is that he was selected for random screenings of paranoia he could have entered the building us impedimenta why would it not be a rational or reasonably reasonable inference that he was going to communicate with this communications device i think it is a inference that he would communicate with it but to communicate with it for the purposes of kidnapping or assassinating or impersonating a law enforcement officer i think is the issue mr winky and i think that and i think his office on a brassica avenue in washington d c and so what that required of him was to get on the marc train in martinsburg head to union station in washington d c and then get on a metro train from union station  o the number ask the avenue address in the months and years leading up to mr wynn he had been working at the nebraska avenue at least for the h s for six years in the months leading up to that there had been multiple  accidents on the metro train involving trains getting stuck in the tunnel individuals dying because the smoke was coming in through the tunnels and they couldn't get out there with insurance going with this or what i was suggesting to your hon was that he took he had those items on him because he was a commuter and the bottom line is mr winky is the type of person who likes to prepare camera and his infrared camera to see through the smoke in order to get yourself out of the tunnel two way communication if you need to talk to somebody you know get it to another passenger in order to get through the tunnel so that you all can get out of there if he is attacked then handcuffs to assist him he was a legal firearms holder in the state of west virginia even if we could plausibly he forgot that you're on but he didn't forget it on the train now you said he needed it on a train you knew he had it he had items in the backpack that that was sort of like up i go bag i have loaded it a lot of cases and only cases it seems like to me a lot of cases may go the other way to some extent but they're drug cases and it seems to me to be materially different or is it from your perspective when allegation is a terrorist type opportunity for something like this can happen as opposed to maybe he's got broke somewhere one hundred miles away i don't think it's materially different and i still think they need to make the nexus connection between the house and the activity the activity that occurred the officer spoke to imminent danger and what arises from that if they do nothing and he actually does have it there at all and in this two way radio that just documenting is a fact it indicates there's somebody else you don't have a two way radio to talk to you sell to someone else that that's connected with this so think about that in terms of the i mean i don't know if there's been a case on want to deal with this kind of factual situation but this isn't just about dealing with policy a good idea this is you have offices and by the way one big difference on those cases in this case is what you just mentioned that officer says he was trained and he had experience and he understood it puts deference to that level of testimony when establishing his yes right so two thing first i i can't imagine i think the horrible possibility of what could potentially happen in a terrorist attack but i don't think that that because of the terrorism aspect of it that that takes away the sanctity that is associated with somebody is home to just say that well because this involves terrorism and not drugs or potential terrorism and not a murder case we then have to recognize that there is a fair amount of case law that allows us to rely says that the only thing that the magistrate can rely on is the officers training and experience and i think that's what we have here well couldn't the officer look at the nature of the items and the fact that they certainly had a communications component to them who was he likely to handcuff within the department i don't know that he was intending or was likely to hand fight an here is what reasonable inferences can be drawn i think reasonable inferences can be drawn if the officer had any additional information other than just what he had on and if he had  interviewed or talked to a witness that was there that said this guy was making threats or he had postings before about about activity i had seen him detain somebody with those handcuffs before acting like he was a law enforcement officer when he wasn't some other corroboration we have never held that there has to be additional corroboration other than information that is known about the individual even in even cited i mean for instance in the lower case in law i think it was as well the officers always had some other component i recognize that many of those were drug cases there was always some other component the sides just the officer saying i based on my training and experience in what i'm suggesting to you is that there clearly fact that he had those items on him without something little if you're trying to corrupt me you're trying to cabin don't you see you're saying well there has to be something more than the officers belief even given his training that's was something more so i point to something more i try i point to the items in his knapsack well there has to be something move or there is it there is a pretty it seems to me at arguably compelling totality here and was i think if we and analyze it or analogize excuse me to for instance the drug cases i don't think a warrant would issue if an officer found on a potential defendant a quantity of substance substance and then soley based on the fact that he says i found this quantity of the substance and based on my training experience and the fact that he had crack cocaine on him i think he can now i can now go and search his house and then subsequently search his car and his shed and all of these other things are we have a gun internationally offensive weapons  specially pulled aside because they noticed something about the end of it was a random it was a road so had he not randomly picked him he was going in with he probably would have walked on in that he'd been working there for six years and i i don't know but i in in a cargo pants type pocket he had worn those pants apparently the night before and because he has to get up at about four you have to get up about three thirty to make the four thirty train into d c you parents just pulled on the pants that he had without going through he is with no criminal history a legal concealed carry individual in the state of west virginia and so he had he had it in his cargo pants at the time and did not realize given the small size of it that it was still on him and i think again when and this is what we didn't really find the issue with but when he curses it's more of a zero i forgot that this was in there i can't believe that person is the officer interpretating that as all you caught me the williams case set forth the principle that probable cause to search a soft suspects home exists when there are two facts first facts supporting the inference that the suspect is involved in criminal activity in that case drug distribution and second the reasonable suspicion that evidence of that crime will be found in the suspects home and the williams case indicates that that reasonable suspicion can be set forth in two different ways first an explicit statement based on the training and experience of the law enforcement officer or second based on the commonsense reasonable inferences of where that type of evidence is likely to be found what about the case the label or case dealt with whether or not the leon good faith exception applies in that case a drug distribution case the affidavit did not contain any facts linking the drug distribution to the defendant's that's correct your honor and one of the reasons that it said that was because the affidavit lacked a statement by the officer that in the officers training and experience that type of evidence would be found in the home i think when i read lower i infer from that that had that affidavit had that additional statement in it as the affidavit here did that the officer is trained in this type of thing and based on his training and experience evidence of drug distribution is found in the defendant's residence i think the court in the lawyer would have found that the affidavit was sufficient there regardless of the law or case the court found that even though that was missing from the affidavit the leon good faith exception applied because the officer did everything right sought a search warrant the works the search warrant was then approved by two independent judges the magistrate judge who signed off on the warrant and then the district judge in looking at the motion to suppress so in addition to the fact that i think that a large court would have found probable cause had there been the additional statement that there is and this affidavit i think that case also supports that if this court doesn't find would you still have it i think it's those hotel of the of the certain i want to know since everybody did have a hand cup here would that be enough yes your honor i think the walkie talkies are one of the key pieces of evidence here and that's because it indicates that he's working with someone else and the officer  makes this even a picture it's the fact that he attempted to and succeeded in taking at least a loaded firearm into this highly secure facility where he has access to three thousand federal employees and experience in these types of investigations your honor i think that's the minimum see where you go with this but i think what we have here and and what we need to have to establish the nexus is the fact that he the officer says when you're planning this type of violence with someone else you planted in your home evidence of the planting evidence of the preparation evidence of who it is you're planning it with that's all in your home so with the gun particularly that it's loaded with hollow point bullets with the walkie talkies and with everything else of the common sense inference is that he is planning to use about a hundred i was being one hundred miles away i mean isn't distances something sort of important in that line of cases lot and others that the home if the home was in d c where it was clearly zero you know sort of seem obvious he's one hundred miles away  which makes sense if you jump from downtown and you're going to see office as probably something going on here but one hundred miles away i want to make sure you know it all we talk about because it is day and age you can jump on airplanes and go a long ways away you can be a thousand miles away and if you find these items here can you searched at home a thousand miles away is that connection established and always does distance matter i think in this particular d here whatever and he sort of living here in these quarters can you search those based upon this information a hundred miles away while the affidavit explicitly states that this is where he lives and so because it's his residence and the office there's justice principle residence no matter where on planet earth is located you can search it based upon just this information and the only key difference is principle residence which does not apply to any other type of residence or living conditions i think in this case based on these facts i don't think it's a universally applicable but all you have given me is principal residence that's this case could be in a case pressed residence what is it in this case is it the back specific situation where we're dealing with i guess a terrorist type plan against i guess anybody should just be federal employees it no it's the federal aspect that gives us we are limiting but the analysis actually corresponds with the existing cases anderson johnson and grossman severance that what you look at are the normal inferences of where someone would keep and store that type of evidence so i think it fits with that here the normal inference if someone is planning an attack against a federal official against the deputy or secretary of the homeland security that you're doing that in the privacy of your own home and you're doing that in a place where it asked me why would we limited just to the primary residence because all this is going to do is say you write something like this that and what criminals will not keep stuff in a private private residence i don't  in the next case comes this we didn't have it in residence that case is has been a primary residence and it was down in my garage where i worked and they got a search warrant for that it doesn't need to be limited to the primary residence but the analysis here based on this a specific analysis and the fact of the facts of the case here where that the law enforcement officers were aware of this primary residence i don't think if the court were to rule in my favor and write this that it wouldn't need to limit it based on principle residence as a general matter but based on the facts in this case and based on the a finance statement based on his training and experience that people keep and store and maintain this type of evidence in their home that's what gets us to his primary residence in this case my concern is a little different but related i've seen a number of these situations where an officer applies for  search warrant for the home based on a set of facts indicating criminal activity this seems to me rather remarkable in the amount of evidence we have to look at that indicate the two way communications capacity in particular suggests the bell ability or the need to have but in some of the other cases are we getting to the point that we would automatically assume that a cardinal would play in the and that a criminal home for example if we look at drug investigations it's common for in a drug investigation for law enforcement officers to develop evidence that someone is storing drugs at a  stash us and not their primary residence again i think it's a very fact specific inquiry if those were the facts developed in an investigation i think your warrant would be applying for the stash house and not the residence so i think the case law limits that already in the fact that it has to be related in common sense terms to your evidence and facts at hand so no i don't think that  there there's the general proposition that anyone who's involved in criminal activity that you can search their home i do think it has to be a fact pacific driven inquiry based on the investigation is the nature of the bench make a difference the nature of what is being shown is that make a difference yes your honor in the cases that i've looked at it does the court does seem to look at the nature of the offense and i think the nature of the offense is a factor here so for example in the andersen case when the court found that it is reasonable to believe that someone keeps a gun and silencers in their home they were looking at the nature of the offense so i do think the nature of the offense plays a role in the analysis as well as the type of evidence that you're seeking to find thank you did you have anything further in the evidence that the court does not find probable cause in this warrant we believe that leon good faith exception doesn't apply because the affine did everything that he should have done he came he got a warrant he there with in that element because the officer had indicated that he knew that mr winky knew that there was a meeting of high level individuals taking place that day in a room directly across from where his cubicle was during the argument at the district court level the government had indicated that there was no documentary evidence there's no indication in the affidavit that the officer obtained any documentation about scheduling there's no indication in the affidavit that the officer special agent man interviewed anyone or obtained any witnesses or the like a supervisor that would say when he had access to the scheduling in the information of the secretary in fact mr winky did not know that a meeting was taking place yet the officer says in a blanket honor that would require that he he would have to have brought these all of these items in order to do what the officer said kidnap or kill the secretary he would have to brought these items in the anticipation that the think that i wouldn't go so far as to say he was intentionally lying i think it was a misrepresentation because and i in the that section allows for reckless statements to be considered i don't think that the officer had any way of i don't know that he didn't bring that he didn't come smoothly prepared we don't know that he didn't do that before that's that's true that he didn't bring these items before but he had been working there for six years he held the top secret security clearance he had no other criminal history whatsoever only reason he will stop this time is that he was pulled by random screening so it was probable that he would have been able to bring this impedimenta to this cubicle undetected he may have been a well i take that back and i don't know that he would have been able to bring the firearm i think they still that how would they have come to searching for the farm when they would not only run loose after he was pulled subjected to the random search you my understanding is your honor from the facts of the case that you everyone still has to go through metal detection this random search is eight and is additional searching that requires a pat down in addition to the metal detection so i don't think that any you just walk onto affidavit then there was a request for franks hearing that was that i don't think there there is any showing from the government that anything more than what was in the affidavit was presented to the magistrate i don't believe the magistrate took specifically address the denial of the franks hearing in our brief and i think part of that had to do in terms of the thought process we were and i think the argument indicates we were sort of in a position where we have to make a preliminary showing to the court before we even get to a frank's hearing and because our position was and we still believe that the warrant was so barebones as the court your honor described it that it's difficult to show a negative how do i show that officer special agent man couldn't know that mr winky knew well what respect to  the happenstance of this having the revolver when he was allowed to enter the building with the rest of his equipment after the search and after the security officer confiscated the knife and pepper spray gun with the gun but not the other items the other items and i think that's important because that goes to the court's question about leon good faith the officer the officer was incorrect in saying that he made it all the way up to where the secretary was meeting with the handcuffs with the two way radios but he didn't come on i don't i don't i'm not i'm not understanding the value of what you're parsing he still had communications devices camera he did not your honor i'm sorry i thought it was they confiscated just the knife and the pepper spray and that and the handcuffs which is not in the special agent man's affidavit and then the next step is you go into the facility it's a campus the whole thing is a skiff mr winky specific building is also a year in and of itself so that backpack that he had that still had all the other stuff in it including his i pad and a computer none of that went with him into the building it was in a locker at the at the entrance to the building and then he goes up to his cubicle workstation where supposedly these other people were meeting so he had no handcuffs he had no communication he had no infrared camera what did he have all he had the gun and apparently he had one thing else but a gun he had one handcuff key there were two handcuff  one set of handcuffs but two keys it's not clear if both keys work for the same set one he was confiscated it was on his key ring it was complicated with the handcuffs the other key was apparently in this again part of the breathless statement there and it's not a huge deal but it is a it is part of it the officer said it was secretive away in a pocket as if it was in some kind of you know special seam or something in the man's pants and that's not the case it was simply in his pocket that there were no handcuffs for the key to operate because those were seats let me ask you one question regarding a hundred zero yes or he lived in west virginia one hundred miles from the h s it course in washington d c yes and he traveled via public transportation what type of transportation it's the mark train your honor has the final stop in martinsburg it's a commuter train sort of like the v r e that  come to my mind right off but the district court when conducting a hearing and evaluating which didn't happen in this case the officers training and experience and what goes on part of the deference that is provided some extent to the district court is what that district court knows about the local area and you know what the activities are and what this type of officer with this type of training might have and so here we have a district judge sitting in martinsburg and a magistrate judge sitting in martinsburg who is presented with the bare bones affidavit from a special agent who only relies on his training and experience the magistrate does doesn't get any a diff any additional information from that as his training and experience based on a facility one hundred miles away not in the community in washington in downtown washington d c part of our issue was and saw the suggestion that given the bare bones nature of the affidavit that this could have potentially been a rubber stamp issue on the part of the magistrate judge was that when you are presented with an a and we start talking about things like assassination and kidnapping of cabinet level employees that's not something that we see very often martinsburg west virginia even though many of our citizens commute into d c and so without more from the officer from the testimony through exactly what his training and experience was through affidavits from we're from statements from witnesses or what have you this is a potential that we have for a judge to rubber stamp an issue a warrant in order to just to prevent what the court what you would refer to your honor as the potential horrible that could come