yes please thank you may it please the court counsel the district court made reversible error in dismissed mr librettist complaint which alleged the defendant would send a clear leave excuse me violated mr libretti is clearly established fourth amendment rights the defendant sees documents and records which are outside the scope of the warrant the district court concluded and we agree that the warrant contagious subject matter limitation that limitation authorized the seizure of documents and records provided they issue decided by the district court in wyoming where it was tried for the criminal group the yes judge siler mr liberty has filed a motion to suppress the evidence in that case however the prosecution admitted that there was no evidence found in the search of his residence in the motion to suppress was rendered moot their they did as they said the documents were not were not evidence they were in excess of seizure outside the scope of the warrant and not authorized by any exception to the warrant requirement the district court applied the test for an unlawful general search with respect to these documents however mr libretti do not contend that it was an on lawful unlawful general search of his residence but rather an excessive seizure the district court did not and could not conclude that the documents that they ruled were outside the scope of the warrant were and were in fact an excessive caesar on a twelve b six motion without having actually reviewed with the documents where the defendant also seized computers and digital data from mr liberty's residence that were outside the scope of the warrant the warrant also contained a subject matter limitation with respect to the digital data the computers or digital data to be seized had to be either be the instrumentality of a crime or contain evidence of a crime however the computers and digital data seized from mr liberty's residence did not contain any evidence of any crime nor the instrument of a crime as i said also the prosecution in wyoming admitted this in rendered mr liberace's motion to suppress the evidence mo the defendant has argued that the seizure of the computers and digital data was reasonable referencing this court's decision and guest of the layoffs but you're not suggesting that every time gets a search warrant that unless everything that was and it's not material really are relevant to the case right absolutely that's correct your honor but in this particular case they were looking for evidence of a crime and the prosecution in the wyoming case admitted that everything that was seized was not in fact the evidence of a crime the warrant only authorized the seizure of documents or records or computers and digital data if it was either the evidence of a crime or the instrumentality of a crime in the wyoming case they conceded that i'm certain sorry they conceded that everything that was seized was neither of these things outside the scope of the warrant in reference to the defendant's argument that the temporary seizure of computers was legal he referenced this court's ruling unguessed a few lists this court acknowledged the technical difficulties in searching a computer or digital data inside someone's home and they allowed the temporary seizure of computers or digital data for the purpose of investigating what goes on there however the requirement is that it's only a temporary seizure for the purpose of investigating the materials that were contained there we allege he at least has constructive possession is the person who sees that or would be able to return it to him if he were so inclined to do so where the government claims it is turned back there the government has returned some of mr liberties property but all of it in the computer is still not industry liberty's possession or i'm sorry your honor mistake computer is then returned but it was not return in a timely fashion ok so it's back but did you just say you should have sent back earlier yes i mean they had they had reviewed it and find there was no evidence of any crime that was outside the scope of the warrant but retained it for a much longer period of time they retained it until after mr libretti was acquitted of all charges in the wyoming case and then he moved for the return of his property at the end of the trial at which point some of this property was returned some of it was not in fact there were leaks seizure of legal herbs that were also ordered to be returned which the government then instead the tro destroyed after being ordered by the way home in court to return in reference to the temporary permit permission to temporarily seize the computers and digital data under this court's ruling and guess to be less that's only legal because the government's been a car i'm sorry the courts rather have been accommodating to the government for the purpose of doing these investigations however this courts also ruled in blakeney back in one nine he's not entirely qualified immunity because to be entitled to qualified immunity rather he can it really is a defense of qualified immunity if he violates the constitutional right of mr libby that was clearly established at the time these fourth amendment rights of mr liberty were in fact clearly you know the warrantless instrumentalities of the crime that the officer sees as this and that you're not arguing he intentionally violated the fourth amendment or you see this is this is a items outside the scope of the of the war that therefore you actually are telco meo as to assuming that he acted negligently or recklessly mistakenly tell me why all reasonable officers would know that what he did violated or other than there was a tactical violation of the search warrant i mean what why what about these items would make it clear that an officer come in and execute that war w examinations been made in the documents are shown to not in fact be relevant or not have to be seized under the warrant that's a violation of the fourth amendment with respect to the computers the temporary seizure is in fact allowed however the seizure or contesting is contesting the entire period  seizure from beginning to end the seizure can never be said to be temporary until the computers actually return the computer was a return in a reasonable time frame as required under blakeney per this court's ruling that's the violation the fourth amendment apartment the warrant didn't authorize the seizure of legal herbs suspected controlled substances or any kind of controlled substances whatsoever the district court however ruled in correctly that the warrant didn't fact authorize the seizure of these legal herbs or suspected contraband running out of time here mayor briefly respond and then conclude ok you can only see is under the plain view doctor and if it's apparent contraband if it has an immediately apparent incriminating character these legal herb's didn't have any kind of incriminating characterise they were in fact legal much less an  why he says them but defended woodson is a season or comics officer with fifteen or twenty years of experience he's aware that legal herbs or other substances such as even tobacco couldn't fact be sprayed with chemicals that the time of the seizure there was approx one hundred seventy chemicals that could be used to create the so called spice substance only six of them were actually federally schedule substance at the time little more than three percent of the chemicals available could be used to make this spice in an illegal fashion at the same point in time to back over other substance could be sp mr liberty had a bag of tobacco in his residence would have been allowed to seize that because it couldn't fact be sprayed with a small number of illegal chemicals to make an illegal substance that's stuck in tension i think you just think you we can turn the light on in the morning your honor my name is rene baucus i am an assistant united states attorney in the northern district of ohio and i represent steven woodson a retired drug enforcement agent in his individual capacity officer woodson isn't tired of the qualified immunity for discretionary conda taken by hand and does not violate clearly established law and deciding whether or not officer woodson's actions were reasonable this court must look at whether it reasonable officer could have believed his conduct was lawful in answering the question of qualified immunity there are two questions that the court must ask whether woodson violated the constitutional right and whether that right was clearly established in this case the answer to those questions  favor of qualified immunity first addressing the appellate argument that the district court in wyoming that the u s a u s a conceded that it was that evidence that is not my understanding the usa conceded that they would not be using those items as evidence in the criminal trial and then that's why the motion to suppress was moot the general rule under the fourth amendment is that instrumentalities contraband as well as evidence may be seized upon probable cause and if an item is seized the general rule is that at the conclusion of the criminal trial that the evidence is returned to the rightful owner in this particular case the evidence was  at the judge's ruling judge for info from wyoming and her ruling on the forty one g motion she indicates that he has received back all the things that were confiscated to set for those things they were destroyed and the only thing that was destroyed was a d n a lab destroy suspected spice now the suspect is spice but was not authorized per se by the word but nevertheless it was within the scope of the warrant because it was reasonably related to the office to form the basis of the guard and six circuit has held that the item seized they were not specifically authorized in the warrant may nonetheless still be seized under the scope of the warrant if it is reasonably related to the office the forms the basis of the war and in this case the search warrant was issued to search mr librettos residence for documents and evidence related to three specific crimes and those crimes were of conspiracy to possess with intent to distribute a controlled substance intent to possess intent to possess a controlled substance as well as money laundering the officer see suspected spies and yes suspected spies there's five or six chemicals they were listed as of march first two thousand and eleven which you used to treat these herbs and in and although not all chemicals were considered illegal if that was being used to if chemicals they were not necessarily on the schedule one controlled substance was being used and it was going to be used for human consumption it is indeed illegal under the controlled analog statute which is twenty one u s c a thirteen and under controlled analog statute chemicals that are used to make the similar controlled substances they are treated as if it was a schedule one controlled substance so it was contraband mr barr fish saying that if it's not apparent that it's something that still a go and you can't say shit out a parrot is this somebody to know what you have legal batterers legal well there's no such thing as a legal spice if it is used to be if it is used for human consumption and if you say and it is used to smoke it to produce a relaxing effect that indeed is a controlled analog substance and it is illegal because it is being used for human consumption was it illegal at the time but that it was saved yes or at the controlled substance schedule one list it certain chemicals for making spice as of march first two thousand and eleven the search occurred on march third one thousand and eleven after no this was that subject i mean is it the investigating manufacturing and distribution of controlled substances he was also aware that time that they executed the search warrant and here in ohio they had prior to that search warrant being executed there mr libretti was involved in the distribution of spice and went home in wyoming they did recover suspected spice but at that time the chemicals were not listed in the controlled substance list when they did the search of his home in wyoming and that's how the officer knew or suspected this spice and probable cause does not require that the officer know for certain that evidence will prove a fact only that there is probable cause to believe that it will aid in a particular conviction or apprehension and so he had probable c the suspected spies and as it relates to the other items that mr brady claims after woods and seized those items were specifically listed in the search warrant he was authorized to seize computers he was authorized to seize documents and if you look at u s v henson this this circuit sather well a search does not become invalid merely because some items back covered by warner see absent a flagrant disregard for the limitations of a search warrant the items covered by the warrant will be admissible in a and documents and they seized those computers and back in his pursuant to the warrant yes the spice was mass pacifically listed in the warrant but it was reasonably related to the drug trafficking offenses that were in the warrant in terms of the suspect six four six zero zero and that's the western district of kentucky on july twenty fourth two thousand and thirteen and that current case the officer sees synthetic drugs in the form of incense and he also sees glass pipes  drugs and in that case they held that the officer seizure was not unreasonable and he was entitled to qualified immunity in terms of seizing documents they may have been outside of the scope of the luring this court has also stated that there is inevitable when you are executing a document who aren't there some items that may not relate to the underlying proceedings may be seized and when that occurs that the officers not required to sift through every document to take out those few that may not be related to those proceedings but they are to take care and making sure that they seize only those things that are necessary but the court also recognizes that the officer is entitled to some discretion in my understanding is that the u s attorney and the officers in conjunction after they have reviewed it and decided what the case will require that they read to it in conjunction with one another but what is interesting in this case your honor is that afterwards and has retired so the and the items were not in his custody if you will note that the search warrant return was done by officer woodson but the search warrant and then tori was not when officer woodson returned to wyoming in this information is not in the record but just so that the court knows the evidence was turned over to the division of criminal investigation and that's who returned the items to mr brady according to the district court of wyoming and officer woodson like i say works for the drug  and just briefly your honor i like to address the issue about the return of the property and this court under fox v van the police officer and the district attorney were entitled to qualified immunity on the claim that they didn't return items that were seized from the plaintiff this court noted that once the seizure is complete the fourth amendment no longer applies and that the fourth amendment protects the right to retain possession of property not regain possession of property and this would mr woodson did was he seized the prop the evidence and then at that point the seizure was complete and therefore there was no fourth amendment violation for the retain ssion of the as well as there was a motion filed in wyoming during the criminal proceedings in which he sought to get the return of at least one computer that was seized from his home in wyoming so he was aware that those remedies were indeed available to him so your point is these items or that officer with some was the person who had a duty to return these items or had authority correct ok i think we are still ok in summary your honor i just like to point out that the fourth amendment i'm sorry that qualified immunity gives government officials breathing room to make reasonable the mistaken judgment and protect all but the plainly incompetent are those who knowingly violate the law in this case officer woodson did not regarding the seizure of the illegal incense or the other synthetic drugs right there in that case the effect the seizure was authorized by the warrant and furthermore the tests came back and showed the substance that were seized were in fact illegal synthetic drugs they were allowed to seize these temporarily for the purpose of the term in if they are in fact illegal chemicals or not however in that case had the test recent shown that the substances were not in fact illegal synthetic drugs and they won't return in a timely fashion that seizure would have also been held illegal mr murphy i think pretty good point regarding your statement in support of or oral argument and i'm just going to quote from the first sentence of the second paragraph second the law regarding the fourth amendment and the government's retention of the these documents they don't requires clarification and development aren't you in fact conceding that the law is not clearly established by i don't think we ought to rip your spec to the computers amendment and the government's retention means to compound that fourth amendment laws unclear governments retention is unclear requirements clarification and i respectfully degree of disagree your honour's with respect to the computers that would be the case but there were other elements of the complaint that were other elements leading to the dismissal of the complaint where the law is clearly established and the seizure was illegal under the fourth amendment with respect to the documents that were seized i mean these documents were so far outside the scope of the warrant the no reasonable officer could have concluded they should have been seized these were correspondence between mr libretti an attorney regarding end of life decisions things along those respects things along those lines legal documents from previous cases printout of case law things that no we were later to anything that was in the warrant here any underlying conduct leading to the warrant being issued with respect to the excuse me with respect to mr woodson's claims that the fourth amendment protects rights seizure of a lot of the materials were only proper just because they couldn't determine at the time if everything there was supposed to be seized or not so they were allowed to seize them temporarily for the purpose of examining that seizure in fact is never exactly proper if they weren't effects supposed to be sees in the first place upon further investigation this court is allowed something of a retrospective analysis to determine if a temporary seizure was in fact proper later in this particular case as it was shown to some of the things that were seized were in fact supposed to be seized the seizure was never legal and was different then this case of the points made in the senate actually apply a lot better here is mr libretti head of the century interest in some of the materials that were seized the government also had an interest in investigating the crime however once that crime was investigated and found to not be in