contest what i believe to be the most gargantuan search warrant that i know you've ever seen i can't think of a bigger one we have the one of the largest buildings in the ca county georgia it contains laboratories it contains private offices it contains hundreds of u nique and private spaces and a superior court judge and a cam county issued a warrant to search the entire building so you sort of proceeding i guess to the second of your arguments were sort of bypassing the stuff about the the sniffer the sniffer well you know a good question i'm going to segue back into that because i think that the sniffer is a search in itself and that's what we argued in our first component of the brief to this court so i do think that getting the mac addresses is an invasion of privacy and is a search in was not by the way was not contained in the warrant in this case but what we've said right i mean we've said plenty of times that if it if it's in the affidavit good enough i mean the very first word of the warrant as i read it is affidavit affidavit having been duly sworn whatever you look at page two it for it says you know sort of based upon the affidavit you look at the affidavit pretty clearly describes what the sniffers going to do based upon the affidavit not good enough and why is that because that's just a review that's just generic language that says i've reviewed the affidavit i don't incorporate it in here and i've but i've reviewed it and i think there's probable cause and that's all that says it does not have any words of incorporation what do words of incorporation accomplish if not i've reviewed the affidavit and based upon the affidavit i conclude there's probable cause and i really i mean this is just sort of form over substance from you know i disagree with you because i think the united states supreme court in grove versus romero's in justice scalia's opinion there in i think specifically says specifically says that it is the warrant that is of constitutional import and that will warrant has to have the words of incorporation if you want to have the contents of that affidavit right into the warrant but it is the warrant itself that is of constitutional and in the warrant specifically said though that it was based on the attached affidavit wow it said i've reviewed the attached affidavit but it didn't incorporate it now you know it's a quote based on the affidavit yes  first part is if you incorporate the warrant and the warrant says we're going to use a dog then you can use a dog if but i guess my question is why aren't the necessarily have to say that you're going to use a drug sniffing dog if you're going to use a drug sniffing dog it does if the drug sniffing dog is sniffing someplace that it's constitutionally protected and that one has a reasonable expectation of privacy you know where wordsmiths we an emory university laptop right as mr sullivan have a reasonable expectation of privacy and a laptop belongs to emory university because the courts have said many times that just because your in and employ he does not mean that you don't have a reasonable expectation of privacy in your space for example he's an employee of emory courts have said many times that if what he actually did and he said the warrant affidavit mentions the sniffer and that the sniffer was in fact mentioned that's on page i believe nine of the of the said this is the motion to suppress hearing the judge asks are you are you contending about the sniffer and he says well i was until i figured out what was really going on here i think the search warrant allowed him to use this never ok and i think that well i said i think you can i believe that language is important and i hope that we all believe that language is important i think is not a concession nor is it based on this affidavit i find probable cause that's not incorporation and i think it is not a concession but let's assume that it is let's assume let's assume let's take the next step let's assume that a sniffer is not a fourth amendment event and that the warrant authorized a sniffer it's still backwards let's take the whole building you're authorized to search everything and anything in in that building as well if you look at what that warrant sets out it sets out thirteen things authorize to search for and there are connected to this particular device having a media access control address and it has it all specified and all the things associated with that i mean it doesn't authorize any blanket search of the whole building at all well i think i disagree with you number one in the warrant is that wire that particular wireless device number two is electronic data processing and storage devices there's nothing that says that those devices or any of the other devices are connected with that particular mac address or that particular device well i think that i think as understood the way outlined in the listed ok ma'am i mean i don't understand what you're saying but it's an understood and i understand that the fourth amendment is no is is kind of like the one fourth amendment at this particular point but i still think there's some validity to it and that if there is no controlling language you know you you can't take that even if you're right how do you get around the good faith exception because because i think that the warrant is so broad on its face that no one no buddy no competent agent can say  upon the advice that was given so how do you get around good faith exception when you take that factor into consideration but once again i think that's outside the four corners of the of the wire and if you are if you are determining the validity of the warrant then and that wasn't in parted to the issuing judge and it's outside the four corners of the warrant we've got a warrant we've got four corners of the warrant and we've got three different times that the officers went to law enforcement agency agents went to this building june fifth june tenth i think and then finally execution on on june fifteenth i'm out of my first ten minutes well you've reserved some time for a bottle i didn't get to talk to you again clear in the affidavit that a sniffer device was going to be used agents all along intended to use that device to narrow their search as the court has noted already there were two places in the actual move closer to the further away from water your target might be yes your honor it sort of works like a hot or cold so there was testimony at our hearing that when one agent went to the second and fourth floor simultaneously the sniffer registered no readings there meaning it didn't alert to anything at all but then once they got to the third floor and specifically close to dr sullivan's office door it alerted i think it would be signal correct your honor the closer it got to zero was the strongest the strongest a strong signal yes it's almost like a metal detector exactly and let this thing the thing that the sicko used in  no country for old men if you've seen that movie right haven't yet we're good for you it's pretty disturbing but yes so but this is like a metal detector like a metal detector or like judge wilson has already pointed out like a drug sniffing dog  simply is is programmed like a drug sniffing dog is trained to detect contraband it simply alerts when the user of the device is close by to the mac address that it is looking for  it's let me ask you this about the breath of the search the size of the building i mean this this is a little different i guess as i read it i don't know you might have a better case but the case that seems most closely on point here with respect to needing a second warrant for the search of the office within this building is our case and bradley but bradley is a little bit different right i mean it's not in one thousand nine thousand building it was you know a building with four units and not lots of labs and all that stuff so it's probably the best case or is there something better to think i do still think that bradley is the best case your honor because and i recognize the differences pointed out but what was key to the courts now is the same bradley was that the warrant permitted a search of the entire building so long as the agents reasonably believed that they were going to find the items to be seized in that location and that's exactly what we have here once that sniffer device alerted outside of dr sullivan's office the officers the agents absolutely reasonably believed that they were going to find the mac address device and there and then execute the search warrant in accordance with its terms from there again looking for all of the items delineated in the search warrant all connected with underpinning requirement that they be capable of containing child pornography and finally to to your honor judge will since a question about good faith exception that can't be gotten around here i mean i think the warrant obviously was particularized in the place to be searched for the reasons we've discussed and it was also  they didn't need a second search warrant once once that sniffer device alerted outside dr sullivan's office but at the end of the day good faith cannot be gotten around and mr harvey mentioned that if the evidence about agent thomas consulting with  outside counsel for emory and homeland security was outside the four corners of the warrant and i would just note that in nine states versus martin  this court specifically found that in analyzing an argument about good faith exception it's absolutely appropriate to look outside the four corners so i think the testimony about agent thomas consulting with counsel was absolutely on point and it shows that these agents were executing this more it in accordance with its terms and its understanding everybody understood as never was going to be used they executed it to a tee and at the end of the day good good faith exceptional and what about what about  i mean we've got some issues that have been raised for the first time explaining what your position we absolutely do your honor and on that it was conceded below not only from the portion of the evidence your hearing transcript that was noted for mr harvey or to mr harvey but as detailed on page eleven of our brief there was that statement made evident to your hearing then and then before that we have a particular eyes motion to suppress and then after the hearing we also have a post hearing brief in which counsel for dr sullivan states in both of those filings in this case the agents did in theory get a warrant to use their sniffing device to determine the location of a computer and then they filed a post hearing reply brief also stating having gained access to the building and received permission to use a device that could locate in which room the contraband was located we have this position all along that agents were authorized to use the sniffer and then the and r comes out and judge salinas notes in there as part of a finding that the warrant was not overbroad that the language in the affidavit cured any concern any argument that the defendant was raising about the possibility of a general exploratory search and then we have our an arch actions and that's the first time we see from the defendant any argument about quote the warrant did not authorize a search through a sniffer device and even within those are in our objections and underneath those headings the defendant made no argument as he doesn't his brief about third party doctrine g p s all of the things outlined in our brief there was no argument presented there and those are in our direction under that heading it's not until we waived or invited error and we're under a plane air review fatal to all of these arguments is that the defendant can cite no case standing for the proposition that he argues in the initial brief about what a sniffer is and what it does or so then once they got inside and they were able to physically open it the sniffer started giving off readings again telling them that that's their device but i think they had that even on the outside of the door that the device they were looking at they also knew the device wel device in the office nor it was the only device seized that laptop was seized of the desktop computer was seized there was an external hard drive connected to the laptop the with the suspect device the suspect device it had a external drive connected to it and that's what agents were able to do a preview and and they immediately saw a child pornography on that external hard drive there were also some thumb drives that were seized and i believe a cell phone or two let me let me start by saying that i what then prohibit just a blank warrant hey here's a blank warrant put us agents we're going to execute this in good faith trust us we'll do the right thing but that's not even be fair that's not remotely this cases as as judge benson said you've got a warrant here that has this bullet list of the things they're going to look for and then i mean don't we want to encourage officers if they have any qualms about the scope of the warrant all to go consult with some experts these guys did i don't know why that would be outside the the realm of a good faith inquiry and don't we want our agents to get a  investigation in which they narrow it down first and then go get a warrant to invade a present to believe protective space we have dr sullivan has always argued that this investigation was done backwards we got a search warrant for an entire building then we went into the building and used a device to try to narrow it down in and then we did not go back and get a second  go into a protective space just the opposite of what an ordinary investigation would be and by the way i don't think i do not think that bradley is the closest and analogous case in this instance bradley wasn't all records search under the pervious of frog theory so i don't think it has general application to this particular situation the better case for your side if not bradley what's your case they say bradley you say well i say cases like we cited that say any time you're in a multiple door welling building that you have to have probable cause for each particular portion of the dwelling i mind me in the eleventh circuit what what case would sort of countermand bradley with respect the principle that you're talking about i'm sorry i don't i don't have i think we cited a number of cases not necessarily eleven circuit cases there is a case out of the six circuit case out of the four circuit case out of the second circuit but i think it's a general principle that in multi do welling buildings you've got to have some of those cases had warrants and they specifically said well don't tell me one that will be glad to let me look are already in your brief we trust you will find i'm glad i'm glad you do thank you so i i disagree that bradley controls for one thing and as i said doctor dr solomon has always said that the investigation went from the large without probable cause to deter you might you might have a better are your argument might be persuasive if law enforcement did not specifically have knew that device was in there and that building now that they they knew that the device had connected to the internet through a general open network in that building they specifically said in the motion to suppress that they didn't know who that and that computer was associated whether they knew that computers can be sold they didn't know whether it was in a backpack they didn't know or there was transients they didn't necessarily know that it was in the building what they knew was that they knew it was in the building somewhere in the building and i knew it was in there at some at some point  had been in the in that building and that building has an open network so somebody can come through with a backpack somebody can come through with a purchased computer and have used the open network they did not know that it was in that building they knew that it had connected through the open network in that building so i disagree with that interpretation of the facts argument yes sir thank you thank you