important point or two about the search warrant issues first of all it's important to understand the very limited basic argument we're making on the search warrant issue second is remember it's important to remember that what we're talking about here we could argue that there have to be an on site examination of the media before complete before they can be removed we could argue that there has to be a church procedure protocol set forth in the warrant there are commentators and experts  other authorities who say those things are feasible and can and should be done but your honors really and your honor so i don't think need to address that issue in this case because all you really have to address in this case is at the very  doesn't there have to be an explanation in the affidavit about why it's not feasible and why it's necessary to remove things from the scene and not have to search protocol the temari case is really the case that provides guidance here th another context it acknowledges that there may be circumstances even in the case of documents or papers we have to take materials into that search off site but it says and this is totally consistent with the fourth amendment that the judge has sorry you say we don't have to reach the broader question but we have several cases on our calendar which are involve cesar's seizures and searches of computer media so i think we're all familiar point at some level of what the point you're making i mean we don't have to go very far and i i realize your pick of bridget judge kozinski importing perhaps some of this personal experience but it's pretty hard not to i mean it's pretty hard not to i mean i you know analyzing these cases i'll be quite candid i draw on my own experience on my own email upstairs and i realize the problem that you're addressing so  me finish i i'll give you an extra message a judge will achieve for let us my point is this you say and i taken your point myself is that the in this case the affidavit didn't spell out  what the problem was but how much does the you know how is that a pro forma issue because what are they going to they're going to say look we'll go in there and we don't know what we're going to find but if it's a computer and storage devices there's no doubt about it that a lot is going to have a wealth of material on you opened with that therefore before we can go through and sort this out we need to get it right but your honor i thought about that and i brought my little visual aid and i thought it was easy to just stick that experience in a laptop and see what's on it i thought it was easy to bring a laptop to a search warrant and do that i thought it was easy to flip this little button up here to make sure nothing gets a race i'm not a computer expert i may be wrong just physically obviously have a different view on the other can there are others who have a different view but what was your point  point is your honor with your device it's not common knowledge some people think oh yeah it's obvious i think i know enough about computers to know it's obvious you couldn't search even just a little diskette at the scene which is over talking about here we're not talking about  i think with the affidavit should have said it is sometimes it's hard to search computer media on the scene we're going to take a laptop computer with us we're going to make our best effort to see what we can do on the scene and if it's not feasible then we'll take it with us maybe they weren't required to do that if they had a good reason and they did and they can convince the judge in an affidavit that even that's impossible and i would know it's probably not impossible because the f b i suggests that as a possibility and it's manual boilerplate statement i'm not being facetious right because they don't know precisely what they're going to find they don't know unless they've been in the house well they know that i'm sorry ok they know that they're like anybody  a computers if it's a p c and not a laptop is likely to have discovered a cd rom perhaps given all of the technology that's going on because this is what they know about a  potential crime scene ok so this is what they know and they've done they might have zip drives and everything else so they would come in with an affidavit that says we're not sure what we're going to find there but here's the problem boilerplate this is what happens on honest and not and not getting on the edge of a frank's motion and i cite you a case the great house case from oregon where they actually had a prank hearing where an expert at least in view of the defense attorney there went a little too far in the claims he made about a possibility to do on art it depends both on the type of media and the and the condition of the media how much stuff is on it for example and i don't know enough about computers to know everything is deputy to say we will take a laptop computer with us and a computer expert or if it's a two person police department in mayberry we don't have a laptop computer and we don't have access to an expert so that's why we need to take that off scene but that wasn't the case here here the afghan of self was the expert who went on the search will take a laptop we'll check the stuff at the scene some of it we may be able to identify as not having anything of interest a lot of it we won't and here's the reasons why and that's stuff we will remove from the scene and it's almost like an anticipatory search warrant if the events arises that it's not possible to find it on the scene or check in on the scene then they're allowed to seize it for the point is that you're really going you're letting the police and the government go assertion that it's always impossible and we can never do a check at the scene then at the very least there's two actually it's a person hands first of all a magistrate might say this isn't convincing enough i'm not going to grant a warrant and at least you have a judge making the decision second of all you know if if the next person says something like that and that's a little too extreme and some of these other people that i cited in my papers are right about what can be done then you have a friend here and then you have a hearing where you know with maybe that expert they please the court michael welner for the united states given that mr gunn focused on the surface issues given the mr gun focused on the search issues i will restrict my argument to that as well i'd like to remind the court of the circumstances and under which the warrant was issued the affiant was a detective who specialized in computer crimes and child pornography he explained in the a his experience with computers and the number of computer searches and forensic work that he had done he presented an affidavit in a warrant to the state judge requesting permission only to search for computer and computer media containing child pornography so that is th a computer case looking for images of child pornography and when the warrant was executed but the detective found was not a single computer disk like mr gun held up one hundred fifty four separate computer disks of four different types and they laid out in our belief that different sized disks require different types of hardware perhaps different procedures to it to examine given that the warrant authorized seizure of computer media and the search for child pornography the detective took that material back for search in a controlled environment with a steady power source with techniques and parameters to protect the integrity of the data that's laid out in the district court's opinion and the letter you what do you say about though because in fact what they took was more than just child pornography they got the sensually all those personal papers including his alcoholic's amount of anonymous confessions or journals or whatever and other and legitimate images that he have had of adult pornography who knows what else so the problem is and i mean it's obvious this is sort of the n s a case oncet in small scope there the i heard the other day the notion the problem here of all of this voluminous information which if it were in paper hard copy files would be much more understandable to the lay people if you were having a vaca truck up to somebody's house and take out thousands of pages of paper files on the notion that you had to take them off site to go sort through them to find the relevant information now it doesn't seem so  because you're just taking these little digitized media and then you go take them off somewhere but what you've done you know fact is remove all the personal private papers of which maybe one percent may be actually properly within the scope of probable cause in the war so what is what's your response then i mean a different layers of where one draws the line sooner than the probable cause side on the question i think that i've got a five for direct response to your question first and it's an issue that you have started to be so complex but it really is that that's really the context of the issue it is risky wrote about and given the changes in technology it's an issue that will recur and will compare with this court and lower courts for brief responses and one is to parrot back something that you had said to counsel before which is that to make a statement about what the procedures are or conditionally what we will do in a an a it is in a sense boilerplate is not particularly meaningful to the issue a judge at the time of the issuance of the warning just doesn't seem to provide additional protections it just says what's going to happen inevitably and which is essentially what happened in this case the second response i would provide to the court is to direct the courts to its own opinions in the hay case and in the lacy case in which this court said that in the search for child pornography  response i would get i recognize that the emotional appeal to the statement that his personal statements were on the computer he's got personal writings that if that made the choice to use that technology to the senate make the choice to put his personal writing like next to explicit images of hardcore child pornography if he wanted to keep his personal record of his personal life private he didn't have to put it on a computer disk the next image is really disturbing child pornography is really what would have been when not if as i understand it if he put it was on or not because it wasn't tested at the scene well the the right that's correct there was a so where is your argument going that you just now highlighted what the very problem is with the with the seizure aspect of this well  correct your honor you know and well by using by using the computer and given this court statements that certainly can write his personal novel you know one hundred fifty two hundred three hundred thousand pages but he has to do it in was that when the computer had been returned to him by the computer store one of the computer technicians made a comment to the defendant about observing images of child pornography and in the intervening time between when the computer left the shop and by the time the search warrant was disks at the residence and then within those desks over one thousand images of very significant child pornography were found to put the discs away yes rhonda for it for initial examination to determine where whether there was pornography within the scope of the war significant questions raised about the scope of the search and whether it was necessary to look in every document there are cases in which the computer files that issue work and the actual oriented those were tax cases those were financial fraud cases where you would certainly be looking for certain record in this case there really is no way to know ahead of time merely from external examination of a file name whether suffix added to a file name of a computer file there's no way to know whether there's an image of child pornography and to two cases in which that holding was within your swing technologically with why there's any difference between child pornography and a tax record i mean if somebody wants to hide incriminating tax avoid stuff on their computer they can view the same suffix or file manipulation as you do for child porn so why is there any distinction in either direction that is if what's good for child pornography good for any kind of perhaps ok then let me ask this the council is focused on the affidavit we've gone through all that as a practical matter because it was this warrant in terms of what could be searched as opposed to what could be so used was it limited to searching for images only therefore if when scanning was done of all the media all that would be pulled up would be images opposed to any text documents nerds explanation that he just gave about why you have to open something to see if there's a picture in it i like my point because with all due respect and maybe he knows more about computers than me i'm not sure he's right if you look at a warrant that said they didn't have to do that that's my whole point is these are technical questions and i think someone like mr welner he's an expert or like the acting in this case had to explain that in the affidavit to justify not making the warr of child pornography were known to exist not just right it's not like other cases where you have something that maybe suggests right but what's going on with the word should have been narrowed to here is computer disks with child pornography images on them now the government's point is you can't identify those at the scene and my point is that i'm not sure that's correct i think maybe you could see is that your burden to show or not you know it's the burden of the affidavit if they want to see something without having to to pick probable cause they have to give an explanation under tamara they would have to give an explanation in the affidavit about cause that everyone does then i think you have an obligation well and i think you would have an obligation the same way you could have a hundred books on the books job to navigation to look in the books before you took all one hundred books and if you're able to i think you've an obligation looking to death and i think the affidavit if you're going to take them without looking the affidavit should explain why i do have two other points one was the government and you wondered about because the judge fisher was would