discretion by partially denying his his motion to compel mr gene move for the suppression of all evidence obtained as a result of the search was computer that was performed via the network investigative technique deployed by the f b i i need to slow down a little bit we appreciate the efficiency of pursuant to avoid a warrant issued by a magistrate judge and the eastern district of virginia and i can say that confidently because after i filed the initial brief this court decided the combined cases of united states versus horton and united states versus program which involve this very same warrant the court in that decision agreed with many of the arguments advanced by mr gene procedure the court also determined that this violation was of constitutional magnitude and the court decided that the warrant was void of an issue so it was it as if there were there were no warrants it was the equivalent of a warrantless search of mr james computer in the western of arkansas however the court also concluded that the good faith exception to the exclusionary rule announced in united states versus leon could be applied to warrants that are void ab initio and that the exception did in fact apply to prevent exclusion of the evidence obtained pursuant to the united warrant in this case although mr gene continues to assert that the good faith exception should not apply under the circumstances of this case i also have to recognize that this court is currently bound by the panel any is there any factual basis for distinguishing this case from from horton on the leon and you didn't brief from that perspective that from the face of the warrant itself the search that occurred was outside the scope of what the warrant permitted when you look at the actual warrant it indicated that it was authorizing a search of property located in the eastern district of virginia and then also say wherever located it be worn itself is not your honor the app the affidavit that was made in connection with the application for the warrant did said that on page twenty nine of the thirty reference to two attachments one attachment does describe what it what it was mine activating computer again it does not contain that wherever located language the argument is that the activating computer definition is limited by what was on the face of the warrant that an activating computer within the eastern district of virginia because that's what the warrant expressly authorized and then it also specifies the information in attachment b i believe the information to be that was being searched for because we're trying from from the computers so we did make that that argument that this was simply a search that was performed outside the scope of the warrant i don't think that was directly addressed by the court important program but i don't want to be misleading because i believe they did that the court did address it as part of the good faith analysis but i just i think that if you actually look at the warn itself and again not the not the affidavit that was submitted in connection with application although the application did also say that it was seeking authorization for a warrant to search a property within the eastern district of virginia as well on your second issue i don't i didn't see a response in their reply brief i may have missed it to the government's point that that the defendants admission that he was he was regal beagle really eliminates the materiality argument on a motion to well i don't think i did address that your honor and what i would say in response to that is that that is  definitely that is definite inculpatory evidence that weighs against us in this case i don't think it completely eliminates the materiality question though because it again it materiality first of all it can be some problem you know some bug in it that that could've you know resulted in some problem with his computer or disabling of a firewall or something that was mentioned by the experts during the testimony if they could actually found something like that then that would have been exculpatory and i think again it still would have immaterial because it still would have been something that could have given rise to an argument that there's reasonable doubt that that everything on the computer was his or that you know somebody didn't come on and do that so again i would  said that that that is evidence that weighs against us but i don't think it's it's it's determinative as far as the admission that he had that he was that user i would also point out that regarding that issue the district court while recognizing that evidence can be both exculpatory or inculpatory it still be material really based its decision on the fact that there was there appeared to be very little chance of of actually finding exculpatory evidence and i think that that goes towards speak his admission well you're are not i would i would do those also point out on the other side the argument that if if this software been turned over it had been analyzed and mr jean's experts had found no significant errors in the code that would just point in this case that because we never we never got that code it was never turned over if there had been something some error in it something exculpatory we've never had the chance to find it so in essence we can't we are unable to prove that it would have been exculpatory because we don't know because we never got it and i would just suggest that shouldn't be held against mr gene and again if it had been turned over and nothing had been found was was deficient enough based on that the law enforcement should have had enough reason to know that that this magistrate did not have the authority to do this just based on that based on the fact that similar applications had been denied in the past and based on the fact that the department justice was actively lobbying to get the rule changed so that these kind of things would be allowed just said i would just suggest that somebody who is who  violations i think that while there was an error by the magistrate here i think that there still is a deterrent effect that can be had from this because it it prevents law enforcement from seeking  actually occurred but the leon good faith exception to the exclusionary rule did apply the court was well aware of the district court's decision and gene when it decided horton croghan it sided gene on multiple occasions thought the gene decision was very detailed from the district court judge and to why he held what he did on each of the points so the only possible remaining issue on that first point of the appellant is that the warrant on its face only stated eastern i do concede that that's what it says but as judge been pointed out the affidavit did contain this wherever located language and the neat thing about this case is that it's been litigated all across the country i think in every single circuit they have at least one of these playpen type cases so we've seen that courts in these cases of kind of come together recently and said if the execution of the warrant on of the computers amounted to a constitutional violation and then if the judge did not authority leon good faith applies that's been held here in the eighth circuit it's been held in the first fourth circuit the first circuit i believe the tenth circuit right now and the appellant really proposes no new case law why leon should not apply and basically kind of hints that this court has got it wrong and horton croghan in that case is currently i believe on the supreme court's docket jeanne's argument fails because law enforcement's mistake in obtaining this piebald computers that access a certain website when you bring in the fact that a web site's involved common sense would tell you that there might be somebody outside of the district that could be involved in this and more importantly the affidavit goes into great detail about how the tor browser works and the fact that it masks the user's identity the whole point is anonymity and we have no idea who we're dealing with when we're looking at somebody who's using tor so i think that any judg any magistrate could tell the computers very possibly would be located outside the eastern district of virginia in this case and the only tie to the eastern district of virginia was the fact that the server at that point was there as mr holt pointed out also true on it from a good faith and point until you resolve the issue of whether the search occurs at the computer versus after the user has submitted as responded to the eastern district of virginia the location is is uncertain or unresolved absolutely and that goes into my next point leon supposed talks about this deterrence effect and you suppress it there's a difference like well the rules been fixed now and so because of changing technology and the fact that we don't know who we're dealing with just as you said judge logan the rules been fixed now to where a magistrate can absolutely issue this warning again keeping up with technology so i i do think that issue the first issue here is a non issue a good faith applies and the evidence is saved from suppression so the crux of the argument is did the court abused its discretion by partially denying jeans motion to compel i don't believe a dead the timeline is the gene file the motion to compel the government turn over source code information for the exploit among other discovery requests t court held an evidentiary hearing taking evidence from experts on both sides the court then held and camera review of the government's reasons for society and law enforcement privilege including the review of a confidential and classified affidavit that was provided by the government to the district judge subsequent to that court issues a seventeen page detailed opinion that holds that the government must turn over the unique identifier code which the government had actually agreed to do in the hearing the request for the source code version of the and i t instructions was moot that sounds very complicated and it sort of is but basically the appellant thought that what the f b i did was even more complicated than they said it was once testimony came out the government or the judge decided everything had been provided that needed to be regarding that issue and it was moot and then finally the issue here the request for the source code for the exploit was immaterial and covered by privilege so what is an exploit the exploit is the software that the f b i used to bypass the anonymity contained and tors safeguards so it's how they figured out who these people were that was accessing the site it's a law enforcement tool that's all it  is obviously i have no authority to discuss the contents of the memo that the judge viewed in camera i can obviously make that available to the court if you all request similarly i can't discuss the redacted portion of the order in this public setting but can make that available for the court as well but the judges or clearly states that public interest is well served by keeping this exploit code secret by not revealing this tool the court also stated that the concerns  grave enough that a protective order would not suffice now jean in arguing for materiality says that the exploit could have cost issues for his computer and that's why he needs to examine it but there's never been any evidence in this case or any nationwide that i'm aware of where the exploit did not operate correctly and exactly as it was intended basically the defense was on a fishing expedition which the court recognized after hearing testimony the court described having there being any issues with the exploit as a virtually impossible hypothetical situation so i think the court saw that that testimony and that scenario for what it was i mean that the long and short of it is  wants to say that all these things could have happened on his computer and as we say down in arkansas that dog don't hide it just wasn't present there wasn't any evidence in it the defense's motion is very thin on case law regarding this issue the view  if the material was disclosed is there a reasonable probability of acquittal and they talk about the tory evidence and inculpatory evidence could be just as material well the source code is neither it's a tool i believe special agent alpha described it is the lockpick to get in the door of a house it's not what you found in the house it's how they got and it's something that the f b i uses the end coppa tory evidence linking jean to the playpen side and everything that he viewed and everything he did was of course all turned over in this case like i said this this these cases have nationwide appeal and no decisions to my knowledge have been reached on this issue that i'm aware of i just checked with washington d c last week and i think that there was a consolidated oral argument seventh circuit on several playpen cases and one of them had a source code discovery issue in it so it might have been argued in the seventh circuit but no decisions have been reached the only other issue mentioned in the appellant's brief was the disclosure of the server component and there was the issue that the judge thought that that was waived and it wasn't so the court in a separate order about a month after its initial order denied the request for the server component that was basically all the data the f b i received from the plate and website is applied to the user regal beagle or the actual server itself that was used to collect the data and the court held that gene failed to show materiality and that and as judge logan pointed out basically anthony gene wanted to say will this you might have gotten the wrong guy or this might not have worked but what we did was we sent something out saying who  regal beagle we got some information back and then we went and knocked on the door of the guy that the information said was regal beagle after conducting some additional investigations and we asked the guy are you regal beagle and he said yes i am that it worked and then the government's witness also said that we took a snapshot of the defendant's computer before we sent this tool to it and it came out with the stream of information we then use the tool we then sent something to the computer after that tool had been deployed and the exact same stream of information came out so it was basically we didn't alter anything and that data stream showed that again some of the stuff was a little high minded technical for me but that's the way it was explained in court so that's why the judge regarding the server component found that that was in material and if you don't have any more questions that concludes mar arms i'd like to briefly address the issue of law enforcement privilege that was brought up by mr dana obviously there's there's not a lot of actual argument i can i can make about it because i don't know what was presented to the court as far as thousands of computers the f b i sent this exploit to i think there was some testimony from mr jean's expert that that people do do monitor you know they do monitor these kind of websites and monitor traffic going in and out it was possible that something like that could have been you could have been gotten and you could have been intercepted in some way the f b i treated this exploit as something that they sent out to thousands of computers all mr gene wanted to do was have it turned over a single expert that would have been subject to a protective order and the the the district court i think kind of intimated that there was a possibility that that expert could then go create his own exploit based on the knowledge that he gained from that and i just i just didn't feel that in light of the way the f b i treated the exploit by sending it out all over the place i don't think it was reasonable to to withhold it from a single reputable expert that would have been subject to court supervision in looking at it to see if there's anything that could have helped or hurt mr and mr jean and so that was all of that have to say about that if there are any other questions of the answer those but