good morning honors may please the court my name is meredith serving with the federal public defender's office here in denver and i'm arguing on behalf of patrick stein in this case there was absolutely no information in the warrant application that mr simon on the computer used a computer in his home or used a computer in his home during the course of the conspiracy or for any criminal activity whatsoever and according to cordingley there was no probable cause to support a search for computers in his home and i want to go back to you does that argument stand to a thumb drive in other words you i think i'm using computer as sort of a catch all phrase for electronic devices other than a cell phone but it doesn't do the thumb drives as well there was nothing in the warrant application about song drives  thumb drive to determine if it contains that evidence i think that it really turns on sort of the nature of this investigation the co defendants in this case were a group of individuals from rural kansas farming communities much of the investigation focused on improvised explosive devices using common household items there wasn't i mean if you read the the warrant application they did to use their cell phones to communicate with each other but many of their meetings happened in isolated locations where they were meeting in you know open fields and were all kansas and the nature of the offense i actually one of the co defendants looked at youtube videos of how to make homemade explosives but mr stein was not present at that time and that was actually reported by mr allen's girlfriend to the police so i'm sorry i pretty confident we see lots of warrants in drug cases same i'm going to search this house look for bank records  ledger's sales correspondence that shows that the defendant lives at this place all sorts of things where the warrant affidavit doesn't say there's any evidence that the defendant has a bank account keeps a ledger has has a an account  the with the gas company that would show he's you know his name would be on the document here but we allow that search in the open that sort of evidence is uncovered there may be photographs of is being with with drugs because that's the sort of thing you find as evidence of this offense and this is kind of a follow up i think to what judge mathis in was a do you really need to have in the affidavit that sort of detail to show you can see a letter unless you had information before the search that's in the affidavit that this person hadn't had a ledger do we really require that isn't it enough that computers these days frequently contain a lot of information about people and they the group the conspiracy had used computers to some extent he may not have a computer but if he does they should be able to seize it and form a reasonable search  evidence of the fence i do understand the question i think that i mean my response to your to your question is pretty similar to my response to judge matheson which is just that the nature of this particular investigation where the f b i was surveilling these individuals i think it was between february and october of two thousand and sixteen so for almost eight months where there were hours and hours and hours of recorded calls where you know it was a very detailed investigation and they there was nothing in the application about mr stein having a computer i think in that circumstance it's actually a fair assumption to believe that he did not have a computer when the nature of the investigation was so extensive when much of the activity was but that is the point if there is a computer there it's likely to have information if we don't know if there's going to be a computer there we don't know if he's going to have another cell phone and i think a but i think that that's all i think and i think in this particular case given the net nature of the investigation that is that if he had a computer the government would have known about it and in fact this brings me to the franks issue bit before you get to frank's going to what if what if there had been a filing cabinet at the house but there was nothing about a filing cabinet in the investigation that war affidavit wouldn't the search be allowed to look in the filing cabinet to see if there's evidence of the i mean i think that a filing cabinet is  different from a computer and that some of the other items in the warrant that maybe they did have reasonable a reasonable belief would be in his house would have been contained in a filing cabinet but it isn't a computer just an electronic filing case which is riley which says that the computer is more like a house than it is like a container and so you know again this is not something that was argued in the bruce but there is a sort of a different  degree of expectation of privacy with computers that's just sort of a atmospherics or background point but i still think that the point stands that in order to i mean a computer is like a specific a very tangible specific item that in an investigation like this there i think that there just would have been more evidence available to the f b i if he had actually owned a computer  as i understand your statement he i don't think you're disagreeing with her that you ordinarily would need to include in an affidavit that yes there affirmatively is a computer in the house and we want to search it we can often assume that your point i thought was that here there is affirmative evidence that there was not a computer in the house yes that and so so if so it's not that you said something wrong it's that you omitted something though in most cases that won't be affirmative evidence that there was not something so you simply just kind of assume it might be a computer and that was you say search the house bring the computers but when you have affirmative evidence that there's not a computer then your point is to have an accurate affidavit you need that inclusion so that's terms of the affidavit that you were not arguing that the affidavit was insufficiently precise about what to search you were arguing that the affidavit was in adequately describing the fact that there was a computer at all did i misunderstand that concession that i thought several times i read in your briefing i don't know igs i'm not sure exactly what your if you're referring to but we did argue that there was no probable cause and that also the warrant was insufficiently particular well and then there had been insufficiently particular because he did not particularize that there was in a computer in the house yes yes that was better not but i think bolo i don't think that you made an argument that the warrant was not sufficiently particular about what the search for when you clearly did on appeal make that argument but i thought that there was a statement that below you you told the court we are not arguing how the computer search would take place but rather whether it's computers or should take place because it wasn't a computer at all we're not arguing how to search it but what to search and use that's correct if i remember that correctly then do you even have you even preserved an adequate record on appeal about whether the affidavit was under franks was sufficiently particular ok so i feel like there's a lot to unpack there so i just want to do it  manner in which computers were searched as the point but he did preserve the issue of whether the warrant had probable cause to search computers whether there was sufficient probable cause to search because they didn't have it was that there was in fact a computer but that's very different from the the particularities argument that is being made on appeal he also preserved a straightforward probable cause argument so there's the probable cause argument and then there's the franks argument which he absolutely preserved a straight probable cause argument there is no probable cause to search for computers for you also preserve the for the separate for frank's argument which was the subject of the of the multiple evidence you're hearing below and then there was a rd argument which i think is where the preservation dispute really is most flexed out which was about the particularities argument in our position is that that was also preserved although i acknowledge that the record is pretty muddled on that point don't we have a statement by him saying i am not challenging something about how the computer would be searched or rather whether it could be searched ye the issue there i think also goes to the question of what this particular do you really mean because the district court lawyer talks about over breath and talks about there's no particular t if the particular a requirement isn't satisfied because there wasn't probable cause and so i think in in the record below there was some sort of ambiguity about what the district court lawyer was actually saying but our position is that he made a facial challenge to the essentially what i was going to ok the ward can issue if there's probable cause to believe evidence of a crime the location and the more it allows you to list various items you can see under the warrant you're allowed to the warrant gives you the right to search a residence say and to seize certain listed object before you can list an object there do you need to have probable cause to believe there is such an object there and that it will include evidence of the crime or do just that if such an object is there you can seize it because there is probable cause to believe it will contain evidence in the words do you really need any probable cause to believe that a particular object is in the search premises is it enough that if there is such an object you should be able to allowed to seize it under the warrant that's why it's within the warrant because it's likely to provide evidence that's what i that's my question really because i think that may be determinative here given the frank's information they probably could give a good argument that there wasn't probable cause to believe there was a computer incorrectly but i think are you doing that because i didn't articulate if if it's in the warrant i mean i think what you're saying is if it's in the warrant and it's there you can seize it but it seems to be it seems to me that the probable cause question is like a threshold question you need to have some it's a fair probability that that object is going to be there and it has to be i mean i think it is which is that it has to be described with as much specificity as the government's knowledge and circumstances allow which obviously is a slippery standard right i mean it could be that the government just doesn't have that much information in a particular case about a particular crime and i think that's why i keep going back to this issue of this this case was being investigated for eight months i think the government had a lot of specificity about what was happening and yet they didn't have any information about the computer about a computer of mr stein's residence i also think it's worth noting that this was an omnibus application and so it's possible that they included computers just because the other co defendants had computers but they weren't very careful in exercising that from th the sun in a warrant and then if it happened to be at a residence would be able to seize it only something that would be likely to have evidence of the crime but i'm just interested if there's case law because i don't ever recall seeing this issue it please the court police of the united states this court should affirm the district court's denial of stein's motion to suppress picking up on your discussion of probable cause my opposing counsel the necessary probable cause here is not that stein was using a computer it is probable cause to believe that digital evidence of this crime would be found in the house that's the nexus that this court has described in its cases the nexus between the evidence to these that saw the crime alleged and the place to be searched and in this case that's the digital evidence in stein's home that might contain evidence of the conspiracy and when we ask about whether there was a sufficient nexus this court has given four factors instruct  analysis the government things three are instructive here the type of crime the nature of the evidence and reasonable inferences as to where that evidence might be st on the type of crime this was a long conspiracy where the coconspirators were using technology to amass and trade information stein is specifically alleged to have been using a cell phone in tech savvy apps on that cell phone to regularly device and the other watched you tube videos to determine how to make a bomb it is a reasonable inference on this type of crime where the technology over this course of a long and extensive process of researching and discussing that there would be digital evidence on other devices and once you do trying to there's digital evidence on some devices and there's certainly no dispute that there'd be digital evidence on cell phones the nature of th evidence is that it can be transferred easily between devices whether stein conducted surveillance and then put photographs on a thumb drive or whether his coconspirators handed him a cell with information about how to make a bomb this this type of alec tronic digital evidence can be transferred unintentionally or intentionally so once you have probable cause to believe that there is actual evidence and there's probable cause to believe that it would be captured on other devices and have that and i would suggest you look at the right thing case which is instructive on this idea that once there was digital evidence once the defendant conceded that there was evidence on cell phones the court thought it was common sense that it would be found on other devices and that you didn't need separate probable cause for each of those acts of opening where i think the question is whether you would need it in an ordinary sense they the question is when you have other evidence that he did not have a affidavit self which we we maintain that there is but then you ask the franks question was there omitted information that would have negated probable cause and this is important again about how you define what probable cause you're looking for again this is not probable cause  telling a confidential informant early in this conspiracy not to use a computer says nothing about his own use of a computer either then or later in the conspiracy the nd and rd statements are start in looking for a computer and i should acknowledge there's a mistake in our brief page twenty seven where we miss attribute the comment about the google chromebook that wasn't patrick stein saying that but the confidential human source brought up the book that can just be stricken from our brief but it doesn't change the statement as a whole that she's looking for a computer in furtherance of this crime and that he's interested in using technology either his cell phone or this computer seeking in order to to further th seven of our brief that is in quotes someone is looking at the google chromebook that was mis attributed the rest is completely accurate response and he wasn't interested in that particular made of a computer because he associated google with the feds  but that doesn't change the nature of the conversation or any of his comments about looking actively for a computer just the one statement about the google chromebook in particular so you think even with the frank stated so called clue that there was whether that's the thumb drive the cd rom's or the computer those the fair probability existed based on those those three big load factors the type of crime the nature of this evidence and reasonable inferences about where it would be located  as my opposing counsel noted they used computer often as a shorthand for every electronic device other than cell phones but the friend statements really only go to a computer they don't say anything about any other electronic devices and indeed even on the issue of a computer it's as if he's actively looking for one but we have no knowledge about whether he had one before that stopped working or here choir the one that he was actively looking for after those conversations what was the most recent  sure but so when you look at the probable cause assessment you're asking again if there is probable cause and a reasonable inference that digital evidence to be at his house and this does not i want to emphasize give carte blanche for  police officers to open up these devices and search them out well you're still constrained by the particularities analysis and whether or not the digital evidence put forth is sufficiently specific so the officer search of those devices is limited and understand that based on the question presented in the arguments actually developed this was affirmatively disavowed below and under federal rule of criminal procedure twelve as this court interpreted in burke and recently we affirmed in bowline those arguments are just waived their unreviewable this isn't plain air under rule fifty two this is waiver under rule twelve but if you turn to the merits the government maintains that this warrant was sufficiently particular and it's for tat perhaps helpful to digital evidence and instrumentalities such as documents graphic files and contacts that relate to the crime and this court has made very clear if you're give you get to the merits of a computer search yes so the digital evidence the specific digital evidence paragraphs do contain limitations and the government's position is that you have to understand this warrant in context as this court has instructed in all of the cases considering the particular of computer searches even otero which the opposing counsel relies on looked at this warrant in context and there was persuaded by the difference the physical structural difference of the david talks about the search for computers pertaining to weapons of mass destruction or i'm sorry doesn't the introductory paragraph to the affidavit say we're trying to strate judge and attached to the search warrant makes clear that they were utilizing the two step procedure under federal criminal procedure forty one where you seized the devices you take them off site so that you can do the specific  particular search of the devices to to find those other paragraphs that are appropriately limited to the crime or to specific types of materials this court has instructed the government maintains that this warrant was sufficiently particular unsupported by probable cause but in any event the good faith exception would apply this court should presume good faith less limited in specific circumstances are present here defense counsel argues that this warrant was so lacking in probable cause and so lacking in particularities that the officers were not reasonable to rely on it that's simply not the case for a warrant to be found so lacking in probable cause that officers can't rely on the magistrate judge's determination is that you have to find there's not even a minimal nexus let alone a sufficient nexus and for all the reasons we discussed for why there is a sufficient nexus for additional evidence there is certainly a minimal nexus and turning to the particularities argument for a warrant to be facially deficient the courts look at both the face of the affidavit as well as the conduct of the search and here we know that officers understood themselves to be limited because when they found evidence that was outside the scope of the warrant when they found that evidence of child pornography they stopped their search you know and i'm i'm intrigued about that or you would think there is some little bit akin to we have to be able to say that the they discovered incriminating evidence is sufficient to document the adequacy of the war i don't feel very uncomfortable with with making a decision about the adequacy of the warrant term on release be influenced by either whether incriminating evidence was found or that the officers conducted themselves with straight afterwards both of those we  the the question of whether how the officers conducted themselves is really concerned with trying to understand how this work was understood at the time did they understand themselves to be limited the way that we now are h is whether the warrant constrain them it certainly is for that particular area analysis but for the good faith analysis this court has looked to see if if the officers executing the search understood it the way that i exception there apply here including that be off the affiant was present at the search the magistrate judge signed the affidavit as we discussed the conduct was limited when they were searching and that it simply doesn't deter unlawful conduct for all of these reasons a warrant which the officers reasonably relied upon was supported by probable cause and written with sufficient particularity if there are no further questions  close call and the franks question which were the material emissions about mr science scuse me computer ownership i'm he did there were several times in which mr syme told th government informant that he was either looking for a computer didn't have a computer and and then the last six statement which was made on september th approximately two weeks before mr stein's arrest was that the informant said he doesn't have a computer he doesn't have internet so i mean even if you if one thinks about this in terms of digital evidence i think it is also important to just keep in mind that mr stein was although he was using his cell phone he was not a