know mr meek it's been in prison since march of last year in our briefs we raised the constitutionality of a number of statutes and i'm here to suggest that we don't have to reach the constitutionality of any statute because the search warrant nine it is totally devoid of probable cause the court below called it a close question i don't think it's close at all no photograph was ever sent as to the first the february twenty third ninety nine warr pure speech question and never at any time does so called victim one who we know was officer mchugh and tell mr meek how old he is that alone separates it from all of the other published cases in the area however what happens is that there is a number of statements that are made that suggest parental supervision my parents are at home with you later i gotta go and words to that effect and i would suggest that there are numerous college students who are much older than the age of eighteen who are still subjected to parental supervision in fact based on a conversation i had this morning with my daughter i would suggest that colonel supervision never rads the fact that there is some conversation about the fact that parents are looking i got to go tells us nothing at all about the age of so called victim number one he says married and it says possibly suggesting that he's possibly married i don't know any fourteen year olds who are married i know very few people i think any who are minors were married and then the birthdate sought for mr meeks home car and for his arrest we have some additional information and i'd like to discuss that because each of those pieces of additional information are completely misrepresented in an effort to by officer mccune at the time he received quote adult late teens says he in the police report which was written on i believe april the third thanks again adult late teen this is not a photograph of a young boy and this is driven by officer dodi that photograph becomes the photograph of a quote young boy now officer dodi has never seen a photograph so we can say well he's looked at the photograph and somehow come to his own expert opinion as to what the photograph this and we know from the statements of expertise that are written by officer mckeown that officer mitch cutest an expert in this field where is that photograph i'm sorry is the photograph on the record it is not nor did the judge below ever look at it so all we have is that evidence of people who have look at it that's correct neither side submitted the photograph correct well how can you argue anything other than then the person said looks like a boy so therefore it's a boy how am i am so if you don't submit  photograph how can we say that what they thought was there was there are two things one is that the statement that is made by officer mckeown who is the person who saw the photograph and the only person who is relevant for the search warrant said it is a photograph of an adult late teen and then when it comes time for officer dodi to report what officer mckeown has said because dodi also has not seen the photograph wi then says it's a photograph of a young boy now we don't need to get a photograph or look at a photograph to conclude that that's a misstatement because there is no intervening place for officer to go to to get additional information about the photograph he does not correctly report that what she said rather he misrepresents it and he doesn't want an effort to get a search warrant so the only thing you have are those two statements to show this was not a graph no your honor with all due respect there was a preliminary examination held in contra costa county court judge grossman which considered the state law violations and there was a coronary examination conducted and secondly that when judge grossman looked at the photograph he said he couldn't determine that it was a minor so your honor the record with the exception of the misrepresentation which is contained in the search warrant is all to the same effect which is that this is a young adult not a minor and nothing could be more relevant that separates whether this is a criminal case or not even between the aerial search warrant  that the only evidence on the question of age was that victim one was asked by mchugh when did it happen jeffrey no your age and victim one say that yeah and was never nor did he say how do you know your age or more importantly what age did he think you were and most importantly when it comes time to write the search warrant that again that that fact becomes something far different when honor with all due respect i think that there is a sort of poignancy about the way in which the law enforcement proceeds in this area which is much different than the other twenty four twenty two cases if you look at of the all the evidence and where it takes us and more importantly to look at the pranks question which was pretty follow we never had an evidentiary hearing we believe that the evidence recurring we would show that there were significant misrepresentations made about the photo which is crucial to the probable cause analysis because if in fact me did submit a photograph of child pornography a minor who is displaying his genitals in a way that to appeal to those kinds of interests that is significantly different than a photograph of someone who is of age that's the dividing line between what is criminal and what is not and as to the age that too is significant because if meek knew that he was communicating with someone who was a minor that is significant in terms of what is allowed let's take a different situation which is that if someone is exchanging adult pornography over the internet with someone else and that includes photographs of people who are nineteen or ninety that's legal and if they are having conversations with one another describing as the magistrate said below what they want to do to each other and how they want to do it that too is legal and we know from reno in cases that follow with th that kind of speech takes place all day every day throughout the united states it is popular for some reason but it is popular and it is also illegal explicit discussions about sex between adults are absolutely  legal and so in order to carefully define that which is legal now which is not we need to have for the purposes of a search warrant a showing of criminality and that is a showing as to the specific thing that is going to be found at the place to be searched particularized showing as to that and that's the point that we raised in our our brief and supplemented with the letter because it takes us into the question of bridges and bridges talks about the fact that the general warrant was the basis for the fourth amendment and what the general warrant did is allow to a search at any time for essentially any reason and the fourth amendment fortunately  takes us away from that what the fourth amendment requires is a particular eyes showing and in bridges this court found in september following powell and other cases not particularly controversial that warrant which is so called included but not limited to is not in any way limited but rather is an open door to allow the executing officer to seize anything they want pursuant to the warrant which is the equivalent of the  and there is nothing new in bridges other than perhaps the lesson for law enforcement to go back and read the fourth amendment and follow it to get tickets by particularly prescribing that which you can seize pursuant to the warrant and in the war here of the thirteen categories that are stepped forth in the warrant at page eighty one of the excerpts of record eight of those have the included but not limited to language it's hard to imagine what cannot be much broader than bridges it's sexually explicit materials many of those would be protected by the first amendment because anything sexual explicit is not criminal this needs to be limited to those things which are described with particulary that which is going to be seized pursuant to the warrant if you let's just go down to something that seems uncontroversial but it says any and all documentation in number nine  disclosing describe him or her reflecting or hurting to pornographic images adulterer child it seems to me then that you could seize the president's commission's report on pornography the kinsey report the book  the famous television show sex and the city was based on any c d s of that show if you look at number three meet any name and address ledger is including but not limited to those containing names addresses except true of persons who have similar sexual interest well that means any contact he's ever had in his life because it's not limited to their all of his photographic equipment all of his computer equipment everything that could record in any way whether digitally or by voice or by stevie or by computer all computer generated crap that's everything that's ever come out of this computer re  we certainly agree with mr meek that there is no reference in the instant message to the victim and that we're limited just to the language of the instant message back and forth looking specifically at that language record twenty four but i'm ok just now while on the computer again indicating that parents are in the house and he's ok for this point it's time but a reasonable inference is that if you were doing something else his parents might  i think that we can say that there is whether the government would bring a case to prove beyond a reasonable doubt that this absolutely shows piano respond down to captain jeffrey knew that he was communicating with mine or maybe open to question i determine whether probable cause existed that there was a violation it's actually if there are two equal premises and one does not predominate over the other how do both of them become probable goes back to this idea of parental control and parental supervision will you be able to get away the result in france from your parents and maybe have an adult person living at home that's not a logical question really to i'd i think it's part of the overall law enforcement investigative tools and one is they want to try to identify the person with whom they're they're communicating with there was at the outset they jeffrey to the extent the investigation went along the line and invited captain jeffrey to a meeting at a hotel room if he doesn't show up there's still this looming charge of twenty four twenty  based on the information that they gained so that they already knew who mr meek was before they actually went and made the arrest in the instance that they had and if they had invited mr meek to a investigative tool officers can at any time pretend to be somebody else and often do in other kinds of undercover cases and in this instance the officer who goes on line is in compliance with the exception of an investigative tool to go online to pretend to be whoever you want to be so you're saying that it's not private because the officer on the other line even though the other person doesn't know that i would s the leon question of whether or not it didn't rise to probable cause or whether there was some evidence of the violation which the officers could recently for life i don't mean to point your argument any particular way but i would like your comments internet i think that's right and i agree and i agree with courts that that is true but in addition to that if they actually expose the material it's something that a pedophile may use to west and inhibitions of a child that he or she may be trying to