before the court one was the issue of a warrantless search of a computer and in that particular case the government relied on an argument that the computer had been abandoned i think the evidence shows and that that he he planned on returning but that he was locked up in jail so he never had the fact fact was that mr mosquito whose house he was living in had been advised that he planned on returning she believed he plans on returning and in fact he told the f b i agent agent mckeown that that his sister had stolen the computer and he was aware of that and so in his mosquito whose house he was living in and working for his room and board for his room and board their plant knew that he planned on returning he had told her that he planned it didn't he tell her that he the testimony on that was that you are one sixty only what he said well and when i think the testimony it was from this mosquito that he had told her when he left that he when he left when he left that he intended to return ok and then when the he was in prison and he had no access to telephone well he was locked up in a jail a tribal jail and i think she testified you know i m indicated that he had contacted her and that she at one point did go get this car there at her house and he didn't tell his mother to pick up the computer i don't know that i think that he had indicated to her that he wanted her to pick up his at least his car and something so he could have esther but i see no evidence that he did so miss his landlord and landlady didn't have any information for what three months i think that she talked to him i think her testimony was that she talked to him in july and that she knew he was going to get surgery and that his father was in the hospital he's going to have hip surgery which she did have  and that at that point she thought that he was going to return at that point i thought that point when was that point when he left when he left but there is a space of three months where he's not done anything well i think in part there was a time when he was with his father who was in the hospital and then a stranger strand that there may be periods of time but three months  left them there i think that in the case that she had an intention to protect his property well it wasn't her conflicting evidence of something that she was just going to sell this stuff or have a yard sale or so i don't garage sale you know  there may have been a statement by her that one point that that that was what she thought about doing she never did that well i know but but we have to think ok everything that the judge heard and then the judge decided after the judge could have said i don't think he abandoned it i think he was locked up and so then you didn't have a right but on the other hand there were conflicting facts that came about i mean it's undisputed had that he was gone it's undisputed when he went to jail but then felt landlord you know i mean there's all sorts of things i mean you say he's was staying there and work for his rent but then there's some evidence to say was only supposed to stay there ten know some one cup look at that and say hey that guy just you know he overstayed his welcome he didn't even really you know i mean it's questionable what rights he had even to that and then there's testimony about he would leave the door to his room open and that he wasn't so the judge heard a lot of stuff and maybe the judge could have come to the same conclusion you're asking but there's also evidence he could have come to the other conclusion i think the important testimony to consider i still ok but if there is conflicting testimony and there's some basis for that cause decision that the judge came to know and we say that's clear error i think because f b i agent mckeown testify mosquita agreed that he would never have allowed them to take the computer or to release the computer and that was a new york to forty nine and the r two fifty so i think when you have the f b i agent saying that was a selective indication i think wasn't big us that was well i think it could be interpreted as ambiguous but i think what's important though is that you know this occurred at the same time when  detective damian stewart was with him and he had told detective damian stewart that he could search the computer and indeed detective stuart did search the computer and found no child pornography on the computer so the suggestion is that he his reaction at the time he had consented to the search of the computer was a reaction out of guilt that they were going to find child pornography on the computer and they didn't so they detective stuart searched the computer apparently didn't use the sophisticated enough of a program and found no evidence of that so the government maintained their position was when he doubled over in a fetal position in response to a question about did you download child pornography on that computer that somehow or other was in the missions i think that runs contrary to him at that time telling detective sort go ahead and search my computer and his reaction could have very well been to any of a number of things the fact that he was being arrested for failure to register many other things so you r theory then is that his reaction wasn't because he feared what they had found but his that's the time his belief was they couldn't find anything while indeed he told them the search he gave them permission and they did search at that time that's the and they didn't find anything i think he believed the think wouldn't find anything because he didn't write stright you know he may have been technologically challenged to not recognize the sophistication of the ok so were there any cases that really discussed you know like this kind of physiological response response right and interpret that as an indication of the right could construe that kind of physical response or this act of curling up into a fetal position and we i think we argued that united states versus laurens which is a long circuit case five seventy second  remained silent i thought he just didn't answer the question you rely upon the fact here that you put significant the fact that that he curled up into this fetal position well i don't think that i did i think the government argued that that was  placing significance on that again is that at that time he of while been for the search and then the government comes in a trial and says then an opening statement that that is  reason for the jury to believe that he's guilty or that he's refused to answer the question and that and then again they hear that during the testimony of the united states marshal and then they hit it again in closing suggesting that that this movement shows some admission of guilt on his part ok we've got your argument ok thank you it please the court my name is vanessa while breath and it is my pleasure to argue on behalf of the united states of america mourn appellant raised three issues in his brief which did not support disturbing the defendant's conviction and sentence here the fourth amendment issue the double jeopardy issue and the fifth amendment issues and i can go into the district court's oral ruling regarding the motion to suppress on the abandonment issue as just pay as noted it is a clear error review and hear the facts as articulated by judge van sickle in his oral ruling at the pretrial hearing on the motion returns of his privacy interest in his computer in that room the length of time after he departed the home where he had been staying as a guest with miss miss data at the request of his mother and also the opportunities that mr zak really had to indicate to miss gaita the homeowner or others that he intended to return to her home or that he had any specific instructions how she should treat the possessions in his room kind of in a hog and choice in terms of if he'd tell someone to go get the computer and hide it then if i were the prosecutor i'd be arguing consciousness of guilt he knew that there was the stuff on there or he just hopes that no one will find it and lets it live but he's not really he's not really sane it's not his computer any any can't really go on in some he's not saying it's not his computer that's true he did have the opportunity to convey information to ms misstated the facts as articulated in the district court's ruling articulate how he had sent a letter to just had general greetings didn't indicate that he would return or that request to keep his possessions in order or private and he also had been able to communicate with his mother regarding his possessions so the just a court found that that did indicate he had opportunity to try to take an effort to preserve privacy in that computer and he did not do so and that factored into the totality of the circumstances test for the abandonment finding significance to the fact that he deleted  for them if not implicated if he does no longer has a privacy interest in the computer so once he's abandoned that there is no more issue regarding any search so yes your honor whether he deleted it or the yes or the deletions would not have affected that  on a motion to suppress under the fifth amendment and there was a finding that mr zak earlier the defendant had waived his miranda rights he was read his miranda rights on that april twenty ninth tw case ruled that there is this possibility of a selective in vocation the rounds a court actually ruled that a defendant who replied no comment or remained silent over the course of an interview in which he had answered some questions and waived his miranda and then answered more questions after an intermittent silence did not be invoke or invoke his miranda rights and during the course of that interview  response which is properly admissible and expressive conduct yes your honor so that type of physical response is properly admitted and it's not an invocation of it's it's allowed under the law to say i want to talk to you about this but i don't really want to talk to you about that and just because you don't want to talk about a particular subject matter doesn't mean you have and you don't want to talk to the place anymore right person is permitted to speak to some issues and not others but they need to make an affirmative statement as to i'm not going to discuss those issues and to and invoke their miranda rights that here we don't have any that again no issue regarding the initial waiver of them or into rights and then over the course of an interview where he answered questions before and after a nonverbal response there is no selective  and in fact continued the interview pressley invoke it the question we're dealing with council is what you've called i agree is expressive conduct and the expressive kind could be construed as a n and big was expression of a desire not to waive his right to remain silence at that point focused more on the times when an individual has remained silent or not answered a question in the course of an interview which i think does factor into these providing a response to his behavior but that does not change the fifth amendment analysis under his requiring an unequivocal invocation of  well i think the one case which may be on point your honor is noriega where there was a individual who was told by a officer of the department home and security is this what happened kind of recounting an event to that individual and that individual silence who in the course of a time of providing information to the government official gave information before and after silence and that testimony did come in because it was deemed to be a  part of her overall response by not responding it's permissible that that could become in that could come in after a valid miranda waiver of a case pino noriega and that's at one eighty nine f third one zero eight nine never the cases  to yes ford and the renzo are both strong cases in this circuit that go to the issues of that you need to really have an unequivocal in vocation what's important here is that again his reaction there was at the same instance that he had told them that they could search the computer and and it was i don't pull i don't know that they posed any other questions i think the testimony of those that if they stopped i think that that after that when he curled up i think there was at that point a break and i don't know that they ever resumed after that point is my recollection of what occurred there what does that tell us well i think that tells you that that essentially is an indication of his right to remain silent but even if evidence is to be excluded and shepherd was the one nine hundred thirty three case shepherd versus united states to ninety u s ninety six at one o four so i think it follow that if nothing else it falls in that area we don't know but if you don't know then it's to be excluded as not to be a law but i would maintain that that we know because that he was that he was asserting the right to remain silent because he allowed them to eat to search the computer and the suggestion here that that tilts the balance in the favor of the government is that that was really an admission of