case the united states of america versus gregory because they suspected him after fourteen month investigation of child pornography assesses the lies told by law enforcement been cheated and he consented to either enter the residence or search the electronic devices although most government the st is the claim that it was quote not materially false that they were there for to investigate identity theft this is that there is simply no evidence in the record to support the claim that they were at all concerned that someone with using either mr or mrs bob meyers identity on the internet i thought they didn't get a search warrant because there was uncertainty you know him to his credit card was being used with grounds to get a search warrant we know that mr but i'm always the subject of the current investigation and that's in the record at age eighty in the st report of investigation they knew that his credit card i didn't believe that his credit card on the internet soliciting a female that was the whole scheme was a female would solicit pictures from young boys but your honor the kick application that would used involve the letter is g and b was infected by this d suppose in the midst of the statement well that may be true but i think that even if i think that it seems they got into the house they encountered him into bomoh as well and he was given the opportunity to  violation even before anything was said about child exploitation but they also let mr bogan also believe that he was the victim of identity theft because in this if you read the testimon when he when he gave his consent agent johnson testified quote they both told me they were employed by the school district and they would be happy to assist so i think it from that that it was clear that they thought that they were assisting with an investigation into a crime that had been committed by someone else and not by them and for that reason we believe that this is that would or would have rendered the consent invalid and on this point your honor as i'd like to draw the course of the one to one thing say we're to looking into child exploitation that's what we do i mean many can say yeah i mean i have a hard time then seeing how that is being misled or maybe he knows what's on that phone is not good for him it's horrible guess i have a hard time seeing that i thought it was all based on the initial you know identity theft reference well that that is part of it and that's the primary argument is that you know entering the house in the st place before they even mention anything about child exploitation they told they came concern by telling these people that they were the victims of identity theft which which was simply not the case especially with victim that he was there they told the defendant as he was the victim of identity theft and the court in that case suppressed the evidence on that basis and they said and this is important in footnote quote the government did not present any legitimate evidence that identity theft had occurred or was a concern it would simply not a plausible scenario and it's our position that the same could be said about the record in this case  investigating guns specifically a machine gun and the defendant consented to a search on that basis and said well i'll show you what time that you have and the same thing happened to be a felon and so you would prosecute to me that cases is far that point when the agents mentioned that they were in the middle in the business of investigating child exploitation or whatever the term that that did not totally blow their believes consistent with the testimony of agent johnson and his wife that they thought that they were the victims of identity theft and they i think if that law enforcement had told the truth then the suburban or probably would not consent to the think i don't think at that point in time he that was going through his mind that number one number two he probably didn't know that there was a suppression issue that could have been raised i think the st time the that he learned that was when he spoke to me as the lack of any other possible the sense that he may have had this was really his only chance at getting a favorable result from this to both mom and really he should have at the very least filed a motion to suppress and based on  to to get credit for acceptance of responsibility on that basis i think that that's where that argument kind of was was pointed towards me but i do think that he if you look at the the notes of his attorneys when  you st visited the clients in the jail it says right there under the guise of identity theft and says that we were the victims of a they told us that we were the victims of identity theft to me that that's the best evidence that contemporaneous evidence near the time of the search that showed that he thought that they were the victims of identity theft and that's why they gave them consent to enter the residence in the st place so i would place greater greater weight or in the the contemporaneous notes of his attorneys than on the kind of or her testimony that he gave during the course of the sentencing hearing which was i think targeted towards trying to get him be away from his wife it seems like that's a problem your honor that that wasn't an issue that was granted we didn't get a certificate of appeal ability on miranda issue so we're not pursuing that i wouldn't have committed any more ok is totally uncorroborated for wholly dependent on the assertion that there's a self serving assertions of a criminal defendant and it's really actually is unique in that regard not many  matter that someone was possibly using their identity on the internet we would then welcome inside the home so it's not his he's not just saying that that was the sworn testimony of the agent who conducted the search then you have the testimony of mrs the mall you said this quote and when i when they came to the door i was under the impression that we were the victims of identity theft she later said that was the premise of why i thought investigators were there let me was that she was investigating a matter that someone was part of what do you think their identity on the internet which was true they had information that someone had a about children that's why we're happy to assess we caught up for four people that's what they said and mr bobbitt was always out point i think it's important to remember we're still trying to hide all of this from his room later to go into another room to get his computer and the eggs that haven't seen questionable things on his phone follows them and said hey i think we need to talk about what's her it was i going to be that she testified that they had been victims of identity theft in the past and she thought to herself here we go again and made we related to identity theft but in any of that before anybody granted to consent to work at any phone or any computer both of them were informed that it was a child exploitation and a fact that was being investigated now the the chase shows us that the agents are not required to tell the sun that every single thing they know they're not required to tell them at the moment that they encounter them you're our main guy right now they are here only we're wired to to not affirmatively leave them and there was no affirmative misrepresentation here there was i'm trying to figure out who's using your framework even though he did not specifically cite the statute what he did was i'm taking all of these facts and with all of these facts i determine based on all of this testimony that the concern what voluntary this is will this not overboard and i don't need for evidence or more testimony on that topic i can make that decision based on all of the evidence that i already have most meaningful but even so the district court said and even if i could suffer about all they say of what i already know from the hearing and what i know from the hearing and what i've been able to determine repeatedly emphasized the cooperation that was the whole point of a lot of the testimony of the discussion here and he didn't want to be detained he wanted to be out and so he was emphasizing all along you know what house was on being and that how he safaris he was a journalist he worked for a newspaper in addition to being a high school teacher you're not really dealing with somebody that terribly unsophisticated or doesn't understand these basic things determine that there was most likely at least things of concern if not outright contraband on that from and having him why mr rosenthal about that he willingly agreed to go with that and thus far down the so this was not a situation where he was tracked into letting the police then and then there was something in plain view that they he then told them the truth they came to the house they told him even more detail he handed them to found and then after of being aware of what the agent saw he willingly went with them to have an additional further conversation most likely because he was finding regarding the facts are not clearly around here and the conclusions that he drew regarding the volunteer and this is a consent are not incorrect and so i'm happy to answer any very much your honor i just five quick points first with regard to the initial statement the law enforcement said to mrs the wall it's almost exactly what was said to the defendant in parsons in that case they said quote there was a chance he could be the victim of identity theft so it's the same it's possible that you're the victim of identity theft second with regard to the address that's in the record concluding that this that there was any legitimate investigation into identity theft rd with regard to the child exploitation statement it's not the same as telling  there you can reconcile those two statements and conclude as apparently to both knowledge did that somebody else was committing a crime and they were investigating the crime someone else was committed so i don't think it's that probative a even if there were it was already after the initial force and then the violation which occurred when they entered the physical boundaries of the house and in addition to that if there's some conflict on the record as to what that statement meant and what people believed that it meant then that's all the more reason for it and evidentiary hearing for his wife wasn't out so much when she thought this was an identity theft investigation we know that from the testimony of agent johnson she says that she told her at the door well that we're investigating whether somebody is possibly using your identity young internet so it wasn't the case where he was thinking oh this  something else that happened in the past investigation she was told by johnson exactly that we are investigating the possibility that somebody is using your identity on the internet and finally this is maybe the most important point that the note that law enforcement gained consent under the guise of identity theft so i think that that is the most important evidence in the whole case his attorney was on notice of a military suppression issue and failed to follow up