the next case on the calendar is united states the my name's barclay johnson pleased to be here here on behalf of mr aldridge but also mr scanlon these are the three cases that were consolidated and i understand you're going to be arguing for twenty minutes about fifteen minutes you're on it in five minutes and rebuttal on behalf of them right i plan to address good faith and also whether a warrant was required and mr mcguire will address the rule forty one issues  this case is different from those that have resolved this claim by relying on the good faith exception for at least two reasons the record is different and the claims here are different and more expansive  not all courts have been presented with a record as robust as it is here as to what the government agents lawyers and executives know and did the record is largely undisputed the claims not all courts of consider these claims we've argued for instance that the warrant itself was expressly limited to the eastern district of virginia and facially deficient as any search outside the district rel it was objective leon reasonable or reflected deliberate misconduct we've also argued that deterrence is not the sole goal of the exclusionary rule and we've argued that leon itself demands that the actions of the government as a whole be considered and that the collective knowledge doctoring isn't a one way street simply for the government to use to catch criminals and i think it's important to note at the outset that as much as we argue this point is the government that bears the burden here of proving that the good faith exception plies turning to the government's actions it's well established that when the government exhibits deliberate reckless or grossly negligent disregard for fourth amendment rights the good faith exception will not apply and we think the record own internal operating guidelines told it not to seek so the government we know the government knew that rule forty nine would not authorize this warrant because the government began seeking an amendment to rule forty one in the months after a decision from the southern district of texas declined to issue a similar warrant and we know that this  established that the government knew that rule forty one wouldn't apply and it could establish that a belt and suspenders they they wanted to make it perfectly clear that they they had an argument that they believed would persuade courts has persuaded some court that this was an appropriate tracking warrant i think we know that this became or was the official government position because it wrote to judge raji and the rules committee saying this type of warrant isn't authorized by rule forty one and i think that's a fair characterization especially because the government's own internal manual says in a situation like this you should go to every judge judicial district where there is going to be a search and get a warrant there that would really wouldn't be possible in the way this warrant operate as you wouldn't know where what districts the search was going to take place if we assume the search takes place where the device when at the at the point when the electronic communication reaches the laptop the people that have access the site i don't think that's necessarily true the government has offices in every judicial district could do just what it is emanuel said and get a warrant in every judicial district the specifics of how it went to that i think are beyond the scope of this case right but am i wrong i'm just trying to make sure i understand the computer aspects of this given the way this operation was set up in order to ensure that you've gotten a warrant by that interpretation you have to get a warrant in every judicial district in the united states i think that  the agents testified that yes we knew that this would be executed across the united states and throughout the world ultimately again i think that  the southern district of texas tate case ultimately represents the government's view is evident both from its interactions with the rule committee rules committee and also its own internal manual and sometimes warrants are drafted by unsophisticated actors or law enforcement officers with little or no legal support but this isn't one of those cases as we point out the warrant was reviewed by multiple  and executives within the department of justice to get involved several layers of management within the department of justice and the f b i including lawyers at the computer crime and intellectual property section think it's definitely the same more and i think the record here is more robust as to what the government knew what actions it took but it's also our claims are different so not not only are we arguing about the government's actions what it knew ahead of time we're also arguing for example that the warrant some of them were and some of them weren't but what hasn't been extensively or really much of all that i gave you is our claim that the warrant is limited on its face to the eastern district of virginia and reliance on it was therefore on reasonable or reflected deliberate misconduct and so the warrant itself and i'll refer to mr eldridge's appendixes is there a  i don't think so your honor i think they're under especially this court's decisions in the race six fifty fifth avenue yes if we look at the warrant there's just nothing in it that permits or specifies or hints at some authorization to search computers in every judicial district in the united states not to mention the rest of the world  honor well i want to be an answer that in two ways one i mean there was a search using the n i t it did and the records undisputed the the computer program goes to the defendant's computer takes nonpublic information from that computer so the government is going into the computer with that first warrant and i asked and eldrid the lower court said that this is about ip addresses you don't have any reasonable expectation of privacy in your ip address i know that you say it went beyond that that could you just address that would this have been a search if the  all that had been obtained was the ip address i think that that's a closer question i think there is reason to think that being of obtaining ip addresses it is distinct from the the pen trap register you know that's approved i can't remember if it's miller or smith but you know that was a limb very limited operation as it found them right whereas this is this is you know it's something both larger and scale ultimately in this case but it's also something that you know the defendants here the allegation is that they tried to i went through extra extraordinary lengths to keep this piece of information confidential it's a closer question but also mentally i think it's one the court need not address because the records undisputed that several other nonpublic pieces of information were changed from the computer from the defendant's computer but turning back to the the warran while the application and affidavit provide more detail if we look at the warrant there's just nothing there that says you may search outside the eastern district of virginia and the application and affidavit they're not incorporated using the deliberate and unequivocal language of incorporation that this court has said you have to use if you're going to incorporate other documents attachments a and b which is what the government offers provide some language simply references an underlying language that simply references an underlying affidavit or a document doesn't incorporate it and even if it did there's nothing in implication of not saying it's limited to the eastern district of virginia and we think the idea that that negative implication somehow conveys authority to search every single computer in all the judicial districts just doesn't pass muster difference here that the reason the whole reason that the activating act here is your client's reach into the eastern district of virginia it's only at the fact that the the child porn site is accessed through a very circuitous as you pointed out secret mechanism that lends credence to the government's argument that everyone who accesses the site knows exactly what they're accessing it's rejecting that and saying the idea of a virtual trip in this is just too much and the record alternately is clear the computer program involved comes to the defendant's computer wherever that may be here it was and vermont and connecticut and takes the information from there i just i guess i keep circling back if the information was limited to location information the i mean i know you council is going to address the tracking information but it's you began with the premise that this that the search took place in all these other districts and the warrant says just the eastern district right but this is not the simple this case or coming to that conclusion the simplest cases is the other cases that you rely on where oklahoma judge kansas judge issues a warrant to take place in a physical location in oklahoma well i think this case is perhaps more simple given the scope of what was asked for i mean there's nothing ordinary about this case in terms of what the government knew ahead of time what its position was what it knew about how this was going to be executed that is thousands of computers all across the united states and the world  and so i think that the scope of that that violation does make this an easier case if it can't apply here it's hard to see where it would apply and maybe your colleague is going to address this but i  now three circuits have ruled that the warrant was void ab initio i wonder if that has implications for the good faith argument that had that haven't been perceived by some of the other circuit courts i think it does to the issue this warrant and then took a warrant that as we've pointed out says nothing you know the warrant it's attachments says nothing about being executed in this case in vermont and connecticut but really throughout the united morning james maguire on behalf of timothy allen so there are three topics that i'd like to touch on this morning the third of the topics is this rule forty one issue but before getting to that i think there are two important things to know  is this issue of a constitutional violation we've identified in our briefing regarding the nature of the website itself so we've pointed to it and in fact i think this is important and something other courts have fit have generally failed to address there is a very recent seven circuit decision that i think came out just this morning or yesterday that does briefly address the nature of the website and the specifically the banner and the two color images that appear on a page three of defendant reply brief but generally certain courts have not addressed this and in fact the first and fourth circuits wrongly assume that this site that defendants accessed during the course of this operation was a site in which there were two young girls with legs spread that is factually untrue and the government agrees instead defendants including mr allen who visited the site four days after the government took over that website visited a site with a very different better and this is important because the government i think would like to make the suggestion that this is the dark web this is a place where criminals lurk where people should be suspected for visiting the site but the reality is short of what appears on that first website there is nothing the government can point to that actually points to criminality on the part of a person visiting that site your argument this logo went went there was already reason to think anyone visiting would know that this was child porn and we want to suggest is that maybe there's reason to believe this is sexual content but sexual content particularly sexual content that may be embarrassing may be scorned but is not illegal is the sort of expressive behavior the sort of privacy interest that is important and really is meaningfully threatened it's a real reason for being on tour second within the website there is content that is but this warrant is not for all individuals who visit specific parts of the website and so in addition to the concern that they're really that this was an operation that extended outside of even the warrant that was issued what's just this is important because the government would suggest that this is a case in which government operatives behaved very carefully scrupulously and here they really did not at the very best they operated having made a representation to the magistrate operated in a manner that was not consistent with that and this is not an every day case this is not an agent breaking down a door this as noted massive operation that had massive privacy interests across the world and had substantial collateral consequences the supreme court has said every distribution of child porn is a separate harm the government was willing to impose those harms and it should at the very least have been much more careful secondly would like to i think respond to judge chance question are all the other circuits really wrong one of the done wrong and i think the this also relates to the question of what does it mean that this was a warrant that multiple circuits to the circuits to address would have agreed or is void of an issue would suggest is this we are here in twenty eight teen addressing the question of whether the burke case decided in one nine hundred seventy five is still good law about ten years after the herring case strongly suggested at least in its totality it probably isn't that says is that this is an unusual situation this is a point that is in that doesn't help your argument that this is so i think that it does and the reason is this short circuit courts generally have taken a example wouldn't apply in a case of a completely warrantless search i would suggest is that leon suggests circumstances in which there's been a failure within the process but that the general process is intact a completely warrantless search in which there's just a decision to go bang down a door is a direct assault on that process the circumstances here with the government during which is the part of leon that correct me if i'm misremembering at that hearing doesn't provide these specific criteria to here that it does suggest that there is balancing but that it is not enough to do what other circuits have done and simply revert to leon and act like this is just a question of probable cause what happened here did deprive other magistrates other judges of the ability to make this important decision as indicated by my co counsel there are many reasons to have serious concerns about the government's good faith here in addition to what i have identified with respect to the website finally turning to the rule forty one issue this is a subject that all circuit courts to have addressed it have agreed on we do understand there are a minority of  courts that have initially came out the other way would say about that is that one i think we start with the language of the rule there is nothing in the rule that suggests that the government is allowed to enter computers and obtain information and cause those computers centrally seizing them to transfer information of the rule really doesn't suggest you can do that and i think that's why all of circuits to address it agree this is a technical issue this is new technology and it's certainly possible to make mistakes to think looking on the surface that maybe what was happening was tracking but what i think is important is he both what the device did and what it didn't do what the government did was enter a computer obtaining information that went beyond simply the ip address and i said compelled the computer then trends in this information the government was clear this is a search for specific pieces of information sort of try to specific piece of information that would that would allow the government to know where the  what where the computer what computer had had access to this website so it does broadly they sought location information they didn't ask for anything else they didn't they didn't ask the computer to tell is there child other child porn on the site what what is  at this computer they just sought information that was relevant to location so i think the first that's not entirely correct it obtained things like the operating system of the computer thing which really has nothing to do  with its location so it was beyond simply location i think an analogy and it is difficult to try to find the real world analogy it's sort of in we see justice in the briefing like the government snuck a camera somehow into someone's house and is able to look at a letter sitting on a table now the government has entered that person's  o i think that that question the if the answer to the question is well not much of an invasion i think  not so there's also a mac address which is another identifier question that returns information about whether the net had been downloaded before all of which suggests and to know for example the operating system thing with th doing is looking inside that computer i don't think that there would be a question from the court saying if the government entered someone's house only blindly only to look to see if a piece of mail had a particular address on it that would be a less serious search that the government may choose not to read the entire letter k class from the supreme court the court the police officer went inside the suspects card to see the vehicle identification number and that wasn't a search because you have no expectation of privacy in that vehicle identification number leaning into the car to see it when it wasn't visible from the outside and what i'd say is again this is a search of more information than just the location information this is also and i think that you know the supreme court has recognized that digital devices are far more private than what we expect in a car with the government has clearly demonstrated the capability to do here is to peer inside someone's most personal files now the government may choose say that it didn't do that but the nature of the invasion is into that deeply protected private area it's not just a vin number this war it isn't the rule forty one by whether it was violated or not this war it went beyond the scope of the magistrate's act so it's void even if there even if it had been authorized even assuming it was authorized before one you certainly don't disagree that's not frankly extensively briefed in what we've submitted i am aware other courts have identified that as an additional concern and of course it is important to point out that rule forty one is essentially incorporated act that no matter what we're not just talking about a procedural rule problem we are talking about fundamentally the authorizing statute that even gives magistrates the ability to do anything at all and she represents the government in rubber eldrid versus united states and christopher scanlon versus united states i will address the issues of whether the net warrant was authorized on the rule forty one before and assuming are going do that it was not whether the good faith exception applies mr masterson will address the issue of whether the net is unconstitutional within the framework set states versus burke or whether a technical violation of all forty one took place and if so whether that conclusion stands as an obstacle to the of the cation of the good faith exception and so i would agree with defense counsel in one thing this was not an ordinary case the opponents in three cases before the court took calculated and intentional steps to disguise and hide their criminal conduct they used technological tools to hide their location and their identity and make it impossible for law enforcement officers to use traditional forms of or traditional process to identify or locate them and they did that in order to navigate the dark web and axes playpen which was a website wholly dedicated to child pornography as all of the sister courts that have addressed this warrant thus far have noted that sexual exploitation of children on the playpen web site was massive over one hundred fifty thousand users had registered within the first six months they had been over ninety five thousand postings in over nine thousand topics all related to child pornography and it also included forums on how to groom victims and how to avoid law enforcement detection and so faced with what was net a network investigative technique a new electronic technological tool that had been developed by the f b i to track information from the playpen website and he did what every agent should do he drafted a long and detailed affidavit explaining exactly what than it was how it would function and where it would operate and he prepared an application for a search warrant and presented it to a neutral and detached magistrate judge and that nutriment plutarch magistrate judge evaluated that application for the existence of probable cause and determine the probable cause existed and issued the war and so this agent reasonably and in good faith relied on the warrant in executing the name and so and so we would disagree with that your honor i think the war yes or it is it is explained in the affidavit what the that the warrant would apply to any activating computer that is any computer being operated by axes the playpen website registered with a username and password and enter that website there and that is exactly how it is described and the activating computer were located yes or does any activity computer or wherever located and so in that sense we argue that the net operated sort of as a tracking device on the rule forty one before but before i get to that point let me say that received notice of it this morning we will follow the appropriate twenty eight to the letter joining the other six circuit courts the first the third the fourth circuit the eighth the ninth and the tenth circuit's all finding in reviewing this exact net warn that the agents here acted in good faith and that is that there would be no they turned value in suppressing the evidence in this case and that the agents obtain the warrant and acted in good faith and i would agree with the court when it says that there were at least eighteen district courts who have found that this was actually a valid warrant issued on the rule forty one before and in fact at least one tracking device yes ma'am all of them yes ma'am and in fact one dissenting no circuit court has done that and the eighth circuit opinion of united states versus horan one dissenting judge judge would have been to task an f b i agent with determining or knowing ahead of time that this would have eventually if that is what the court does that this would have eventually been deemed an invalid warrant is for to honor us in the field of computer tracking devices for two reasons one the government had a pain similar tracking device device warrants sooner they had and so we must also consider that behind each of those eighteen this records a magistrate judge had to be a residential warrant and those districts and each of the residential warrants issued here that is the second warrant obtained in the district  vermont and the second one obtained in the district of connecticut also included the information about them it warrant it in describing what than it was it described how it function where it operated and how it was that the f b i came to obtain the of that original warrant and issuing a warrant so the the government would argue in addition that on the united states versus gonna us recently decided by this court the second agents dea agents in vermont and the agents in connecticut certainly relied on that second residential warrant in good faith having no reason to know that what they were doing was unconstitutional and just on the tracking advice theory  i it seems plausible to be the analogy and in looking at precedent it looks at rule forty one with some flexibility that that your seeking location if if you if had been limited to ip address the computer accesses the porn site and something is inserted to get the ip address but i don't understand the other information is so the traditional tracking device that we usually think of when we think of a tracking device the mechanical device that we normally put on the need of a vehicle and dissipates that we know what that vehicle looks like we've identified that vehicle we can run the license plate and know who drives it and who i of the the requested information was to follow the information the digital content of the website to the computer where it was ultimately resting and then identify the computer in a way that we would be able to distinguish dot computer from other electronic devices within that residence and so that is where these other pieces of information become relevant what is the host name that is correct right so and we would argue that not just the ip address but none of the pieces of information really hold a privacy interest now in this case we understood we needed to get a warrant because the computer was located appellant's home it wasn't in a public place and carry out nots the old tracking device cases those were about public movements and you could use that beeper to track but you couldn't use the beeper once it got inside the home to confirm that the package was still there exactly but in this particular case that's why we obtain a warrant because we we knew that the net would be entering a computer in someone's home but the remaining part of the information help would help us distinguish that computer from other electronic devices within the house had already been deployed to that specific help in a computer well it probably didn't help so much in identifying the computer as much as it just told us this is some this is one we've already identified so it cut down on the one on the legwork that the law enforcement agents would then do following identification but it but that bein information that we had deployed to that computer i don't see how that would have violated the privacy interests of the defendant got here we aren't talking about following digital information that communicates from one computer to another in a very very very short amount of time to do the light of the changes well clearly on there the change for rule forty one forty one the six it is the government's contention that completely would have authorized than it warrants so that is why there is no deterrent dreck i'm sorry  think their argument is somewhat disingenuous when i when a magistrate judge considers the information presented on an affidavit to determine whether or not that affidavit is supported by probable cause it doesn't parse out the pieces of information it considers the information together and in this particular instance there were several pieces of information that led to that finding of probable cause certainly the fact that the appellant's each took advantage of tor had to download the software to their computer then they had to navigate into the dark web they had to know the exact address of the playpen website so the dark web does not function as the open web and the way we know it where  you can search for a term in google and find an ip and website address you have to know the address for that website or you had have been provided the link to that website by someone who knew about the website  and so once you arrive at that home page you see the image in the case of the opponents in this in these three cases of a child a previous and child dressed in a very short dress black fish stockings and seated in of sexually suggestive manner next to the name playpen certainly the site is not offering playpens for sale next to that photograph are instructions on how to post images and videos so you certainly know that your bot to enter a site that contains images and videos and the purpose is to view and exchange them in addition to that it instructs that you have to register in  and password and when you click on the link to register with the username and password you get additional instructions to provide false information to provide information that could be used to identify you and therefore and then there's the fact that it was in fact a child pornography website so taking all of that information as a whole as the seventh circuit recently stated in its opinion it was very unlikely that the appellant simply stumbled upon this site or that once they arrived at that home page that they did not know that they were probably going to be accessing child pornography and so the the point of the government is it was not an intentional misrepresentation to the magistrate judge it was a change that took place on the eve of the signing of the warrant but even if the court were to decide that there was some sort of falshood on the part of the agent it certainly was not material to the finding of the probable cause and so the franks  standard is is simply not met in this case and it does not stand as an obstacle to finding that the agents here acted in good faith and reasonable reliance on that w net warrants before and had obtained it warrants before and then we have the decision of the texas court in a warrant where they denied the warrant it was a more intrusive nit but certainly now we have inconsistent decisions  by various magistrate in different districts and so i think what the government does was see clarification of the rule when this did this was an electronic technology that we should be allowed to use to properly identify the location and identity of  e actors and we sought clarification to do so i don't think that we were compelled to wait for that clarification before continuing to attempt to use an electronic tool that we thought should be utilized to identify bad colleagues thank you may i please the court over masterson from the district of vermont i will be addressing the real forty one violation assume our brother assuming that there is a role for the one violation the question then becomes how do we analyze that other courts have found that avril forty one violation occurred or that it occurred and that it was a constitutional magnitude because the court found that the warrants were void ab initio void at the outset that was the holding and  dean horton and just yesterday and henderson recognizing that precedent as those decisions are out there the government continues to suggest that this court that you don't need to follow that nit warrants if that argument is correct going to a magistrate judge would still render an invalid warrant because of the magistrate act and you could only use the tracking you could only use that new provision if you went to a district court in my understanding that correctly i think you are you are i saw that myself and i thought that there's a disconnect now between the territorial limitations and section six thirty six and  requirements that are in rule forty one so i think that there is a disconnect but the interest and when we think back on how could this have worked we've talked about conversations that occurred about what you know or are we going to go to ninety four different judges honestly the way to make this thing happen was completely onerous we would have required setting up ninety four servers with the playpen website in every single district in the country and getting a separate warded that is what it appears that the defense or the pellets or are wishing that they had happened is that we have gone and gotten ninety seven up ninety four servers ninety four separate warrants and then for all the data that comes in and then we are only allowed to look at hits that came in vermont from vermont active vermont activated computers or connecticut out of three years and all of the other hits that happened on the server that resulted in vermont we would have to ignore that is a logistical nightmare it is theoretically possible which is to whether there was prejudice because it could have happened that way so there was no prejudice it would have been incredibly it would not have been able to happen given the speed with which setting up the operation also had happened it's clear in the record that there was that there was a seizure of a copy of the playpen website in january two thousand and fifteen that was then set up at the server and the government controlled server in virginia then on february eighteenth nineteenth and twenty when the playpen website was looked out to make sure that there were you know was it still up and running and that was how the disconnect on the logo happened but then on the nineteenth the word is was magistrate judge buchanan there is a seizure a separate seizure of the actual server in north carolina and the arrest of the administrator in florida and why i bring this up is because if all that happened and then the data from the server in north carolina was then overlaid on to you know it had  be added to the server in virginia to make sure that it looked but it had to happen quickly enough because people are pinging on that we i think i did the math like ten thousand hits a day and if there's a prolonged time when that website is down people are going to get suspicious and we're going to lose possible targets who should be investigated because they are accessing this horrible site so that's just a separate point that i wanted to bring up going back to the constitutional that is all that is required and venue is not one of those requirements so it is a government's position that the warrant was not any violation was not constitutional because the fourth member requirements for a valid war were m as to whether it was void ab initio i recognize as i said earlier three courts have said that the warrant was void i do not think though that those courts have focused in on the fact that the warrant was applied against individuals in the eastern district of virginia make lamb case which is the fourth circuit case that has been decided that case started in the district where magistrate judge buchanan sat so the war was good certainly as make lamb and his two co appellants i think there were three that were joined but it certainly worked for so at worst it is partially invalid not boyd at the outset so there was a warrant so with no constitutional violation certainly we can go right to good faith and all of the courts that evaluated this the circuit courts have evaluated this warrant the good faith exception certainly applies if there is any sort void from the start because the magistrate had the authority to authorize the virginia search that's the government's position your honor yes with respect to whether and i'm going to the berg framework where you look constitutional violation we believe that there is not and then looking at burke the second inquiry is if there's is there a technical violation and that analysis looks at whether there is prejudice and whether there was any intentional disregard for the rule i think the court has heard a lot today about how that care with which the government approached getting the warrant in virginia the clarity and transparency with which the government approached getting this warrant and doing the operation to ensure that we checked all the appropriate boxes that we were not accused of overreaching and i think it's exclusionary rule beyond areas of constitutional magnitude it's in this is this we're talking about statutory violations here but it's all written before leon and it's progeny so so should we be accepting the b framework is the appropriate one for looking at the statute i know your argument is even accepting it your side prevails but is burke really the right way to think about the exclusionary rule given leon and it think no that it is not and we suggested to the coroner bruce that it's time to revisit the by the viability of burke in light of leon because i mean it would make absolutely no sense here ours if a constitutional violation in a search warrant is that can be evaluated under leon good faith right that's that's a given but if there's a technical violation and the warrant gets suppressed and we can't rely on faith that is a complete disconnect it would be suppressing or a violation of a rule of criminal procedure in a context where you would not suppress for a constitutional violation right and that's completely  ut it just isn't the way the law is right now and as a last not on prejudice i see my time's almost up prejudice as framed i mean the government says the language used in burke more than the search might not otherwise have happened leaves open the possibility that there are other avenues by which the search could happen we pointed out in our brief the article three judge could be consulted or a so i said let's put the server in every single district and get separate warrants in every single one the way that if the defense has huge are the parents have suggested that it should be looked at it's look at the individual and what this he would not have been searched but for this and looking at prejudice in that way is contrary to what leon is teaching us leon watts and the and all of this court case law that follows from leon what to focus in on the actions of law enforcement yes there to turn value is there active government law enforcement misconduct that needs to be addressed that is the focus and not on what happened to that individual because if if there's a problem if that person is his or her rights are intentionally trampled upon then that will be revealed through the the good faith and alice's under leon and that's the way leon wants the  like to start with one correction it's not correct that the warrant itself rather than the application or the affidavit says activating computers wherever located the warrant and it's attachment merely says activat computers the government's argument is that the fact that the preceding sentence is the servers in the eastern district of virginia the negative inference is that the activity in computers will be anywhere we don't think say consider all of the actors here it's not just the agent who acted actually you know flips the switch ultimately from the beginning  shepherds expressly note and shepherd considers the role the government lawyers plays played and that makes sense given the collective knowledge doctrine it's not a one way street and the courts that have declined to argued that deterrence is not the only goal of the exclusionary rule preserving judicial integrity is as well and as as i think everybody recognizes there is nothing ordinary about this case if the good faith exception applies here if the judiciary cannot condemn this fourth amendment violation of violations this large then the good faith exception has succeeded in swallowing a good part of the exclusionary rule and in seriously impairing the ability of the judiciary to act as a meaningful check on executive authority judge john asked or i think was getting at us earlier but that case the rationale of the second warrant would only apply where the government has no significant reason to believe their predicate act was indeed unconstitutional but for all the reasons we've said the government had every reason to virginia also different and deny as was the fact that the court concluded the agents acted reasonably throughout their investigation here is you know that the government acted against its better judgment the remop warrant is fruit  clarification it's the government saying alternately and we cite in our brief to the the comments in the the minutes that the rule on its face doesn't permit this and not only is there that acknowledgment of the government's own manual for years before even the decision from the southern district of texas has said you have a warrant in every district los the court has other questions you see my time is expiring i think of briefly to return to the room forty one issue and the tracking device question i think there are two additional problems to point out of the first is that the requires that tracking be the device be something that tracks movement in this case there is no effort to track a movement of anything whatsoever the government doesn't know and doesn't care where any information went between mr allen's computer and the government server cares about a specific question what computer accessed the site second because an evidence care about where because they need to go into the person's home to access the sure does care where that computer is but again doesn't care about movement also because of the nature of tracking killin me if i wonder if i understand computers at all  there is a query into the eastern district of virginia the instructions are inserted into your client access the child porn site and instructions are inserted to follow it back right so there is the tracking a digital tracking back to the home computer they weren't interested as in your brief ably makes this point they're not interested in every note along the way but i don't think that means it wasn't in a broad sense tracking that information  so again the government really has no information of that flow i think the other point to make regarding this is that mr allen because of the nature of tor never enters the eastern district of virginia and again that's in the briefing briefly  you asked the question of where do you find a link to playpen and with respect to the logo we answer to that is the government cannot say you find a link wherever you find links and again i will warn of the concern that the government w this turns out to be a child porn site this is on the dark web not all things there are criminal and just finally there was a suggestion from the government that it would have been owners to go out and get lots of warrants from different district that's why the government successfully moved to change the rule this is a situation in which the government elected to act first and get permission second and i ask one other question logo argument  that yes you have to create a an account it is installed or at least the ward authorizes installation before someone accesses any information so again the person may know that they are being anonymous which is certainly the case of anyone on tor but the warrant did not require access to child porn thank you all very nicely argued on both sides will take the case under submission