kimberly cossar for the appellant mr roger wilkins you get as close to the mike as possible i don't want to make you uncomfortable but it sounds like you're in very well this is better you're on a little better ok good afternoon and may  please the court mr wilkinson raised the seven issues in this appeal unless this course the court has questions i would like to focus my arguments today on the fourth amendment violations focusing on mr the warrant for the search of the residence and the subsequent warrants that authorized the forensic searches of items that were seized during those searches now it's all you need to run your case the way you think but i'm going to have some real trouble getting my arms around agreeing with you on those are those your best arguments or do you have others that might be more persuasive to the court i think that those are those most critical ones to mr wilkinson while your plan if the court has interest in any of the other questions i any of their issues i'm more than happy i realized we have some  seven issues in this case and my purpose here today is to answer questions at the courthouse the first search warrant issued in this case allowed the police to enter a private residen night any time twenty seconds after knocking on the front door the fourth amendment does not allow this type of intrusion unless the affidavit supporting the search warrant rests on two pillars of probable cause if either is lacking the fourth amendment will not permit search the first is that there must be a fair probability that the evidence of crime exists and the second pillar is that there must be a fair probability that the evidence will be found at the location identified in the in the af in this case the affidavit states in paragraph two that quote living at the residence is william is wilkinson william r jr aka roger this statement is just the bare conclusion for the very next statement says the affiance belief is based upon the following facts i'm certain circumstance circumstances the affidavit then goes on for some eight pages of facts and circumstances including the course of the investigation the alleged criminal activity and the evidence sought but nowhere in those pages is there any factual basis offered which would which would show that mr wilkinson is currently living at that location he was in fact currently living at that location chris was as it turns out it was his house it was his only  only residence for years and it had been where his longtime where his girlfriend had lived with a daughter who was abused here it's where the daughter said that the that the criminal activity took place i disagree your honor that is the daughters that the granddaughter of the well the victim in this case the eight year old she says she went and she visited mr wilkinson but she doesn't say where that was it was at her she went to him to roger's house and she said to roger's house she said she went to  to roger's right but her l t l t said which is her mother right he said that this is where she lived with him when she was when they were boyfriend girlfriend respectfully your honor she does not say anything about the residence where they resided what she says is that they lived together and the dates match up around between two thousand and six and two thousand and eight which is five years before this investigation in two thousand and thirteen she says that she lived with with mr wilkinson at an unfinished house for and it looks like it's about two and a half years when she gives the age of her daughter when you add up the affidavit facts but she doesn't say she doesn't verify an address she doesn't say where that location is she doesn't say anything other than she moved out when she became uncomfortable you know it's a really it's a really curious argument i have to say you know all the years that i've seen for the memory questions i've never seen anybody raise this precise question that the police could be faulted for putting down somebody address where they had a bit julie lived for a number of years and that it was violate the fourth member because they didn't adequately support that that's where they lived i mean i've to say this is a case that you have something that you can that should guide us on this is to what the police have to put down in order to prove that somebody lives at the place where the police believe they live and where everybody else believes he lives i mean this is really not in not in contention is not it's not like he was down at somebody else's apartment or staying with his cousin or something well correct and i think the reason you don't see these cases is because always the officers have they say that they did the nic i checked they say that they run something that  license the officer say that they that they that they that they knew that he lived there they they had reason to believe that he lived there in his subsequent af david when they're attempting to get the extra evidence in but certainly not to the magistrate and also point out that this  from neighboring drome which is a different city in a different county that magistrate doesn't even preside in in the county where this event happened so that's all true as i read it the affidavit includes statements where the except they don't they do not state respectfully your honor that they lived at that address they said what says is that what the affidavit establishes is that the grandfather comes in and he's concerned about his granddaughter he says that for a period of t thousand two thousand and six and two thousand thousand eight mr wilkinson the granddaughter and his daughter live in an address and that's all he says there's nothing that says this is mr wilkinsons long time address there's nothing that says it wasn't her house to start with nobody knows whose home that is it's a residence we know that it's unfinished there's bare stud walls that's all that we know from this two year period we don't know what mr will wilkinson was doing before or after that what it was rented or own it's still pretty remarkable because this is the only place live i mean there's no  like we know that now your honor and that's that's in hindsight but this there's a fourth a man and what we have is an affidavit and we have to look within the four corners of the affidavit for the search of a residence it's not only has to be evidence there not only has to be to believe that there's a crime committed and there will be evidence found in a resident it's got to be that it's got to be the residence of the suspect or the person who is doing that there has to be a reason to look at that residence people are more this is five years old  remarkable i never seen a situation where someone has challenge this replete affidavit and there's some question about whether they have the right to go to that property i mean there are a lot more skinny ones in that that have been upheld by this c in this court pretty vigilant about the fourth amendment well and respectfully your honor i haven't found those cases where they found skinnier evidence about about a residence of the cases and of course they come up in the case of probationers on the ground very cases and that's when the but there is a question and that's pretty clear from the jurisprudence that there needs to be probable cause that the person if there's a suspect things are supposed to be found at their home that there needs to be a base a basis in fact counsel believes it is their cases that i can think of that i have  seen and i haven't made i haven't tried a systematic study of all of this but the cases that i've seen where this is come up is when somebody's been moving around somebody staying with a girlfriend and then staying with the cars and somebody staying with his mother and then and is there for a month or two and is unemployed and and so we have we have to  sort of figure out where somebody is and why we want to go to that particular place this is just never been in question the guy built a house this is where he lived with the girlfriend this is where this is where he takes h h and nobody nobody seemed to question it i'm just wondering why why why now we would we would get to you know call the whole thing off because because because nobody you know put the nail in the coffin so to speak on this one well your honor respectfully that those facts you're talking about  not in the affidavit in this case they're simply are not there but what facts do you want us to tax records from what the the expense of evidence that the officer has he could have put and probably in hindsight wish he would have put the fact that he ran the nic check the fact that he did a in these other cases that we look at we have some information the office around the check in this officer didn't do that he didn't say everybody knows i don't need to run a chat he runs the checks and we find out after the fact extrinsically under the case law can we draw a reasonable inferences from the totality of evidence or of the evidence that's in there but there's no and as what appears to be happening is that all of the evidence that came out maybe at trial or in a subsequent affidavit but everybody knows that officer gregory's statements that he's known to law enforcement we know he's a rascal something like that everybody knows is that it's got to be in the affidavit it can't be what this individual officer knows it can't be the check that he ran afterwards this is not that much different in fact there's less evidence than you had in underwood you could make the same arguments well wasn't there a federal warrant out there weren't all these facts known to all the officers there it needs to be attached to the application that supporting the search warrant for the home it has to be there your honor if the pork or blesses this common this is it turns out just like in many cases well the evidence is there this was you know always this person's all the time that's not that's after the fact justification in the fourth amendment just doesn't allow for that this is exactly the situation here and i think what we're talking about the exclusionary will do we let it slide do we let the officers extrinsic evidence that everybody knew this we all knew who he was this is a small town and i don't know everybody knows where mr wilkinson lived we don't know daughter moved in with mr wilkinson it says they lived there they lived even s even if we agree with you on that point can we don't we just jump here to the good faith exception we do not we do not this is a bear of the what the what is apparent from the affidavit that the magistrate did was was look at officer gregory's statement which is a conclusion and the government agrees on that they look at the statement this is where the defendant resides currently residing or he's residing at this location and he has done and just is maybe trusting the officer but important because this is so what so what precisely does the affidavit say about the address the only reference to the affidavit is from the grandfather and he says this he says he says stephen advised that in two thousand and six to two thousand and eight lindsay in h h had been living with roger at the address in shown idaho that's it that year she doesn't he doesn't say he moved in with her he was building a home it's his home it's his handiwork we don't know who live there or they were going to start their family together and things didn't work out two thousand eight hundred crashes we don't know what there's nothing in the affidavit supports the search warrant that says where what happened to mr wilkinson afterwards she moves out lindsey moves out of the home with her daughter and we don't know what the grandfather is talking about in this case is the relationship what he wants to tell the story of his daughter's relationship but the but the but the affidavit and the affidavit has an address on it  request right right and does it does it state what the basis is but that's not it does not it has the investigation in the line that i read to you stephen advise in two thousand and six to two thousand and eight lindsey n h had been living with roger at the address in show in idaho that's it and that is just the that's the only evidence it's five years old your honor it's a five year old address it could be my address or it could be anyone could have lived there afterwards we don't know what happened to that property and the months later where visitation they talk about the visitation starting later months later we don't know what happened mr wilkinson because no one was concerned about that then when i start i'm looking  yeah i'm sorry and our position is and the government agrees that there's no factual basis to support that statement but i mean again this is the totality of what we can draw in terms of inferences and then you go along here and you fall and that various people that we talked address we went back to the place it's five years old there are and couple of things one is about it in a minute it says here page one seventy three and he says she lived with roger for about two years one when h h was about eighteen months old when he stated that the house was unfinished there was no sheet rock up of the walls so he could see from room to room lindsey notions on so going to talk about the unfinished house basically  anyway i take your point i don't agree with it but i take your point about failure on her it's you can find it because it's just not there it's not perhaps i think what happened is there's a conclusory allegation it says it just the same thing that the district court did  well it says it says he lives there and then the officer says that this is where he's living in this paragraph too and this is where the abuse was taking place but that's a leap to use takes place at mr wilkins with when she is visiting mr wilkinson but there's a gap we don't know where mr wilkinson is living the address information is five years old we know after the fact that the officer but he doesn't rely on that he goes and he does what every officer probably ought to do is he does a check on that and he has personal information but the law is crystal clear it's the four corners of the affidavit that's what we're looking at it there isn't the case of underwood the officer in that case he had the federal often he had the federal affidavit the federal case he had that he took bits and pieces of it but this court hell that's not sufficient the magistrate him or herself has to have the facts in front of that person from which they can make those inferences it can be based on on on essentially trust or that this officers from this county he does he could say he could have put any of those items in the affidavit that would have been sufficient why would be making this point if he would have told the counsel you've exceeded your time ok you're over time i'm going to allow you one minute for a bottle  thank you and may it please the court just walk out appearing for the united states and i was trial counsel in this matter the only reasonable inference that's required to get to probable cause on that affidavit is that the two informants that officer gregory spoke with s t l t knew where the defendant lived in the information the factual information in that affidavit makes it clear that they knew where he lived and your honor asked well where did sergeant gregory get the address the affidavit indicates that s t the grandfather gave it to em and said this was the location where they had previously resided the mother in the victim with the defendant and then went on to explain that the victim continued to have visitation at the defendant's residen after the mother moved out the affidavit was preceded by photographs of the place was that accompany the affidavit at the time it was presented to the op to the judge it did your honor ok so the fact that the pictures were there to with what the grandfather said to provide certainly a reasonable inference that they knew what property they were talking about right yes your honor and when the court weighs the inference by the magistrate judge in deciding probable cause the or no us versus united states the supreme court says in giving deference to those inferences this court should consider the distinctive features of the community and i believe that's very important in this case because this is a very rural community this is not an apartment building in downtown seattle this is a home in the middle of fields in a very small community and it's clear from the affidavit a large shown is your honor i do not know the exact number but having lived in that area i believe that show shown has about two or three thousand residents i can tell this court that even though the magistrate was from jerome that is the adjacent county and this is an extremely rural area of idaho and as your honor pointed out there were photographs of that residence attached to the search warrant and when you look at the photographs it's clear it's a very rural home it's surrounded by fields it has horse stables and that information is important as well because both s t and l t explained that the defendant had animals at his residence for the victim a dog horses and rabbits the type of animals that you would have in a very rural setting and i think your honor kind of hit the nail on the head when he said well maybe it just didn't occur to them to even put that information there because everybody knew where the defendant lived the victim had continued to have visitation with the defendant even after they had moved out so it's absolutely reasonable for the magistrate to infer that this statement that he's currently living at the residence is in fact based on the statements of those informants is there any evidence in the record that the photographs that preceded the affidavit were viewed by the grandfather in connection with the preparation i don't believe that is in the record you're going in to turn to your honor's point which is even if this court decided that this doesn't meet probable cause which we are certainly arguing that it does but even if it does not this court should not suppress based upon the good faith exception this is clearly not a bare bones affidavit and council made the statement i haven't come across a skinnier affidavit well i would point the court to united states versus hope which is cited in our brief as an example of what a barebones affidavit looks like as it relates to the place to be searched the court in the hoa said that there was no connection to the target of the investigation there was no connection the crime and the affidavit did not indicate in any way why it was that officers thought they would find evidence there that is a significantly different circumstance than the affidavit that we have here and a barebones affidavit  a very high burden for a defendant to meet because it has to be such that no reasonable officer would believe that probable cause existed it has to be an obvious error and that is not the case here a colorable argument can clearly be made for probable cause both the magistrate found probable cause and the district court in reviewing the motion to suppress found probable cause so in looking at the potential application of the good faith exception then the court can consider what the officer did and what he knew the officer had this affidavit reviewed not once but twice by the prosecutor and the prosecutor did not request any additional information about whether there was any additional specific information about the defendant currently living at the residence had the prosecutor asked that officer gregory could give it he had personal knowledge that that is where the defendant lived again very rural area so rural that the officer personally knew where he lived and then the day he got the first report to be checked through n c i c to confirm that that was still in fact his residence and we also know that the officer went out to the residence and took photographs and attach them to the search warrant so i would ask this court to affirm the district court's decision denying the motion to suppress on that issue i'm happy to take questions from the panel on any of the thank you for the indulgence of a couple of issues one is the size of the community that it doesn't we're talking about the fourth amendment that we have an we have an affidavit from an officer that is a bare conclusion about about where this property is he says that they did he says that the defendant lives there and i think that that was just accepted with respect and you made that point well what's your response to the government's contention that this would satisfy the good faith exception if you were right about the skinniness of the affidavit well i don't think that it does it's a bit it's a bare conclusion it's there's just not enough in there we have to know you are homes we have to have those by reference the affidavit is incorporating different items and those are the drawings that h h did during her interview are you denying that the photographs were attached they don't appear to be i don't i think these are incredibly sloppy and that's the kind of the crux of this also these are incredibly incredibly sloppy affidavits and sloppy work and the fourth amendment can't be a sliding scale depending on if you're in rural idaho these are law enforcement these are not an ordinary citizens this is law a we have an extra sick comment you know after the fact that i put these in there but they also don't i mean i don't i look at these up and down i don't i mean maybe i want the next picture but as far as there being stables i don't and also this is the place that they want to go search mr wilkinson's belongings i mean his truck's not there he's not there his must you know all the vehicles i talk about there's no indication that he is actually residing at that property at the time these photographs were not question that that's the shawn residence where they got the wrong address