good morning i may please the court the leiberman for the united states i'd like to reserve two minutes for rebuttal in this case mr cathcart molested the minor victim demonstrated a pedophile like attraction to her and admitted similar behavior in the past the question for the panel is whether that conduct when considered alongside the other facts collected during the investigation demonstrated a probable cause for the search of mr cathcart computers the state court judge reasonably answered that question yes the district court's contrary to term nation was error and this court should reverse i'd like to focus on two particular facts in the affidavit that in the government's view reasonably wink mr cathcart in fact number one after mr cathcart post bail he contacts his spouse and requests return of his personal computers and hard drives and further requests that the spouse turn on the home computer tower so he could access it remotely considering the sequence in which that occurred the state court judge could reasonably conclude that mr cathcart was trying to access and possibly hide or delete incriminating files what could he have done working remotely  also whether he sometimes used the home computer for work in his i t work that is not in the record anywhere the difficulty before we move on to the good faith is this perkins case evidence can't tip you into probable cause and there they actually had nude pictures of some underage girls found on the computer we don't really have anything like that in this case really so we don't have any photos that he was detective comes to the home and the type of sees five very large external hard drives with opaque handwritten labels photos a photos b d c zero d c one and the labels particularly photos a photos b don't have any obvious apparent connection to mr cathcart work as an i t service contractor and they also didn't have any apparent connection to the family because immediately upon seeing those with the detective the wife states  we don't take that many photographs and so line up is the sequencing in which this occurs that mr cathcart gets out of prison or jail he immediately requests remote access to the hard drives to person computers shortly after being questioned about child pornography use and then there's active going to the home and seeing the hard drives the somewhat hard drives that mr cathcart requested with these opaque handwritten labels and i mean that almost says it all those labels don't say anything pornographic here you go to the responses you wanted in the affidavit at the officer says based on his training and experience that those types of opaque notations are commonly used with contraband because it allows the user to immediately knew  what's on it but not reveal the context to anybody close by in this case including the spouse so lined up in of course the magistrate the state magistrate is entitled to rely on such statements about the officers training and experience the line up those facts mr cathcart being questioned in jail about child pornography he denies that he gets out wants to collect all of his devices again remote access the detective sees opaque labels and that provides a fair basis for the state court judge in this case to find probable cause now there are other facts in the affidavit that when it read in their isolation could be completely innocuous the phone next on the nightstand during the molestation  mr cathcart conditional denial when the spouse asked do we have any of these materials on our computers and he says there shouldn't be the habit of using of a laptop in the bathroom may be completely innocuous in their own right but line them up and often times of the print supreme court says that the whole picture is greater than the sum of its parts and the state judge here recently found probable cause and this court gives that determination quote great deference but even if this court disagrees on that point and like to shift my the officer based on training and experience concluded that people who molest children carry child pornography here we have a thirteen page affidavit and we have and the fact that we're here this morning debating the in  significance of trying to get back those personal computers and those external hard drives and these opaque labels that demonstrates that the officers here on the ground reasonably relied on the state court judges probable cause determination and that makes this warrant completely unlike the warrants that this court found insufficient and dorothy in need them so even if the court disagrees even if a court agrees that the district with the district court's no probable cause finding suppressi was unwarranted under the good faith exception unless the panel has any additional questions i would like to reserve the balance of my time for rebuttal you may thank you they actually meaningful in the totality of circumstances or are they just fluff just these extra things to justify a fishing expedition an unreasonable search and i think the point goes more to substance  than to form it's not just can you come up with something can you come up with anything beyond evidence of most station but it's supposed to be can you come up with something reasonably solid and reasonably appropriate what the hard drives have been labeled  two thousand eight hundred dollars family reunion and the wife and said we did have a family reunion i don't think that would get the government to probable cause it might be a little bit more suspicious if if his wife had specifically debunked an assertion on the on the labels but the fact that they're labeled photos photos a photo is b i don't think has any real significance in the totality of circumstances i've never heard of  person creating child pornography on a hard drive and then labeling it photos i think that's not what these people do i think the specifically in this situation where they will anything actually count on those hard drives you know was i specifically where the government and where law enforcement is alleging that mr cathcart has this technological aptitude to not only hide images but to potentially destroy them that it's giving him that credit and then on the other hand it's saying well but he might resort to this incredibly almost primitive method of hiding child pornography on a hard drive and then taking the steps to label it photos i've never heard of anything like that i don't think the court should give it a whole lot of credence here got a number of conversations with his wife he did yes post arrest post them all a station the daughter correct correct and you seen  really interested in his computer etc he wanted access to his computers and mr cathcart worked in computers he worked maintaining data centers and he worked remotely so i think it's perfectly natural that he would request access to all of his devices to enable him to work while he's awaiting trial or dealing with st nations you talk about having some laundry he did he asked his wife to i think wash some clothes that were laying about and she responds if you mean the clothes that you were wearing when i found you they've been turned over for evidence or something like that and he says no no no i just mean close to where if i get out of jail i think that's the more credible inference that the court should draw as to all these calls not just laundry but with respect to electronic devices and as one of your honor stated when when mr lieberman was arguing there's no evidence in the record that he didn't use his home his home device his home computer tower for work purposes there was nothing to distinguish it necessarily from his work device and i think more importantly  that certainly could be a different factor if if we had evidence on that there's no evidence but there is evidence that he had a work computer correct there's evidence that he had a work computer i think the more important point is that there is no evidence that he called for access to that home tower in order to potentially destroy evidence relating to child pornography possession i think that's a sort of a leap of faith or a strained in isn't warranted either individually or in the totality of circumstances again that the totality of circumstances is not this magical phrase that the government can invoke and cause us to just abandon all scrutiny of what those circumstances are i said in the brief that all of nothing is still nothing and i think that's really what distinguishes this case from a case like united states versus our visa to supreme court case where law enforcement takes a look at a suspect vehicle and it comes up with seven different in disha or observed facts that taken together in their totality point reasonably towards the type of activity that law enforcement is  suspecting their drug smuggling or alien smuggling in that case the pieces fit together and they fit this pattern they don't fit in the same way here i don't think they fit in all and i don't think the inference can be drawn that mr cathcart took his laptop and into the bathroom to look at child pornography there or was calling his wife to request access to files so that he could destroy it when it hasn't been established in the slightest that there was anything to destroy in the st place mean that if mr cathcart was looking at child pornography then his calls might support the theory that he was trying to destroy evidence i don't think that gets us to probable cause and i don't think it gets us into good  territory either it's just the sort of wild firas thing with really no basis in fact and i want to read the court quote from a case called united states versus falso a nd circuit case because they rejected precisely this type of conditionally probative nexus evidence they said although five falso might hoard evatt images of child pornography if he viewed and downloaded them there's no allegation in the affidavit he was in a position or otherwise inclined to do so and all of what the government argues here is the same sort of flawed syllogistic logic where it's supposed to be the other way around it's supposed to be facts driving and pointing towards the ultimate conclusion that there was child pornography is not enough by itself to get in the good faith the officers were to have read needham and doherty on the morning that they provided that affidavit would they have known that that the affidavit was absolutely worthless i think they should have yes what what  what what what sections of those of those cases were told them that this was a futile exercise well i think one particular portion of needham strikes strikes me as probative in the government failed to highlight it's that they presented evidence the officer in needham presented evidence that needham not just had been accused of molestation but that in the past he had been charged with possessing obscene matter in connection with being arrested for some sort of sexual contact with minors so there i think we have something well beyond what we have in mr cathcart case we have a defendant accused not just of most station but the fact is just so different from anything in this case how would they know that they that they couldn't link up the other things that they had described the fact of the photos and the wife's comments and the fact of the work computer different home computer different from the those those aren't those aren't found in needham those are those are very different facts how would they know that this was not good faith they are different facts i agree with that but i think looking at the affidavit and the nexus six section in particular all of the conditional logic all of the syllogisms there are some of them that i tried to highlight to the court previously if a then b i think they would know that that's not what they want and you know hear it when needed what they say at the end is the only evidence linking the attempted child molestation to the possession was the experience of the officer here the officer starts out with his experience but then he goes on to detail all these very computer specific facts that relate to mr cathcart so i'm i don't know why if you read needham you'd say ok i can't just use my experience that's not enough but are there other and disha and he then goes on to state what they are and then the warrant gets issued why isn't that good faith because i don't think the fact that  the officer can articulate something means that that something entitle him to the protection of the good faith exception in any investigation an officer can come up with a number of different facts they may or may not be probative in the context of the investigation but the fact that he came up with with those things i don't think go to probable cause and i don't know that he came up with them the fact is we have a sophisticated computer operator here you don't have that in many cases you may not have that in other cases but in other cases you do have greater evidence that the defendant was using a computer or using the internet in connection with a sexual interest interest in children in connection with mala station or in connection with seeking out child pornography we see that in weber the th circuit case from a number of years ago we see that in a th circuit case called doyle an th or th circuit case called hudson and we don't have that here at all there's just no connection linking mr cathcart to child pornography except in the officers imagination and this nexus section that he provides i see that my time appears to be up and with no further questions  they please the court two brief points st on to tallahassee this court in the supreme court has said look at the we have to look at the whole picture not individual facts that whole picture includes the initial molestation and crime in this case mr cathcart repeated expressed interest in his computers while in jail his effort to gain or possesses computers and gain remote access upon leaving jail on bond and the fact that we are the detective goes to the house sees the hard drives that he's mr cathcart is looking for and sees opaque a page handwritten labels on their given great deference to the state judge's determination probable cause here exists turn in good faith this affidavit did not violate the central tenets of dorothy needham which is f act of molestation plus the officers training experience that folks commit these crimes possess child pornography those are that's the holding of those two cases we have additional facts in this case that make the officers reliance on the state court judges determination reasonable in fact that it's exactly the nd holding of the fossil case which opposing counsel  either root suppression was unwarranted and this court should reverse the district court's suppression order and less or any further can the questions i think the panel thank you thank you and thank you both for your argument this morning united states versus cat