and hopefully receive the twenty that are citing the tenth circuit decision which held that a warrant almost identical to this one failed the territorial just jurisdiction element requirement twenty five twenty five eighteen three and because it did not limit interception to the state the jurisdiction of the issuing judge  jurisdiction interception to where the phone calls were being intercepted and where the wire room would be intercepted just as in this case that failure renders the war insufficient on its face because it doesn't limit jurisdiction to the territory issuing judge dot dot a court didn't suppress the evidence because it found that the jurisdictional element is not core   require suppression under subsection to some mechanical issue you don't get into the core issues of privacy and uniformity but even if you did suppression would still be required for the reasons that judge tomasky is in his concurring opinion in north which we cite in the brief assuming you find a violation and that you find suppression under twenty five eighteen ten day then the question is whether the government can come forward evidence that the come forward with an evidence establishing that whatever evidence was collected pursuant to the search warrant that is the evidence that supports  of the warrant to sever the excise the invalid portions of the wiretap evidence from what they claim is a valid war and they argue that they can satisfy probable cause even  wiretaps were passed through a through the center in a different county middlesex yes and then and then it was listened to and that's the test and it seems to me right it will satisfy that's the test if the warrant application and the warrant order or the authorization order says that like in rodriguez where they said we're going to we're going to listen to all these calls in the southern district the calls are going to be in the jersey or other districts outside southern district but we're telling you judge and the judge is saying you're going to listen to these here that's not what happened in this case the order itself gives officers the ability to listen to calls wherever the calls are made and wherever the wire made whether in massachusetts or outside in massachusetts and there are a star rodriguez precedent to address this i think the government said that or rodriguez president said that that the hearing the the monitoring in the berkshire county's yes but it doesn't satisfy the problem of the facial invalidity of the warrant and that is not limited to berkshire county or indeed the commonwealth of massachusetts it gives them permission to intercept calls wherever those calls are made  where the wire room is located rodriguez doesn't deal with that issue or the facial issue so it is their authority to the effect that if the warrant fails to on its face to contain   imitation even if that even though that limitation was observed the observance of it is of no import because it's on its face invalid and therefore excluded  why is that why isn't it the same as any omit it fact that now that we know that they were only prepared they were only going to listen to it within a certain range why don't we put that in why aren't the way we would correct any  mission oh i see well i think you can do that perhaps of the application because that seems to be what subsection one of twenty five eight hundred ten days is aimed at something that limits it in that way whether it fails particularities or whatever but the execution come ports with the law that the remedy is suppression of all evidence obtain what pace would we look to for support well i don't know that there is a case either way on that question those cases that say if the dot of the tenth circuit where it's not observed and it's definitely have to adopt your argument that leon doesn't apply to this because the officers had a warrant and they executed it in conformity with the loss and would be hard to argue if we don't have that faith  here right right there are some cases that talk about good faith and say that it doesn't apply a title three i understand yes and but to the heart of your question i guess  it's not clear to me that they did them it the interception that that the wire room was soley located in berkshire county that there is some language that it's kind of loose in the testimony o three of them go to this transaction april fifteenth between second and turn or one between statement and maybe his source and then three start turner testified to it so yeah i think that to five as you stand somebody if they come on my property that's a conditional i suppose but nevertheless to kill a witness which was the cummings case right and that's why you know i didn't file a twenty that because there are differences of course but nevertheless it is that wasn't sealed that's a little different that's not exactly the kind of argument as to what prejudice resulted from the un's from the failure to seal properly that's correct your honor and and minutely an objection should have been made t separate ground that even if it were even if it were introduced that it should not have been played out for four three or four or three analysis i mean isn't the isn't the prejudice that we're concerned with with respect to the  what adverse consequences resulted from failing to seal it right but the prejudice that it tends to that in this case is law allowing the jury to hear and defend its own hundreds of thousands of dollars in cash tens of thousands of dollars in drugs over six hundred grams of cocaine and heroin for over a thousand doses right but the argument is that most of it shouldn't have come in either because and certainly and there's several buckets of evidence here of course the government has conceded that the eight phone call should not have been admitted at trial because of the sealing error but we argue that the derivative evidence nonetheless comes in because of this court's decisions and decision in the manual saying that a sealing error does not require suppression of evidence obtained pursuant to a search warrant rick relying on those recordings mr segment raises a variety of other arguments regarding the aerial surveillance and the evidence seized from his home and from the adjoining property but those arguments are without merit as to the evidence seized from his home and the adjoining property there are sort of two buckets of evidence there that he contests first is the evidence that was found on the footie property and of course as the district court found he had no standing to challenge the seizure of the evidence found on the food the property he had no reasonable expectation of well it comes into play in both arguments so as to the argument that the footie of a foodie evidence should have been suppressed one of the questions is did mr stagg man have a reasonable expectation that the question is did he have a reasonable expectation of privacy in that area i'm not sure and stan are you saying that he didn't have an expectation of privacy in that area because he didn't own that land or just because he wouldn't have had it even if he did on it because it was open land both your honor both go into the analysis of course it's one looks at us precedent that one does not have a reasonable expectation of privacy in one's own fully owned open land within the bounds of one's property that's correct so this court's decision in hayes found that the defendant had no reasonable expectation of privacy in scrub brush that was located sixty five feet from the defendant's property no that's not what i was asking sixty four you say sixty five feet outside his property no it was on i apologize it was on the border of his property but it was on his property it was within his profits correct that's correct it was within his property so no reasonable expectation on one's own property because of the land that's correct and that's what done is the original curtilage analysis case out of the supreme court and that involved a large parcel of land owned by the defendant and the question was whether he had a reasonable expectation of privacy in various parts of the land so just the fact that you own the land doesn't mean that you have a reasonable expectation of privacy you have to look at the land and what the uses are now you do have a reason the fact that he didn't own it was owned by his  was welcome to use the land as a by invitation of his grandparents that didn't didn't prevent him from being exposed to the risk that they might allow people gardeners whoever anybody to come to fix things guests whatever that's correct your honor and so all of the done factors in this case argue against a finding of reasonable expectation a reasonable expectation of privacy the distance between h home and the area where the drugs and gun in the rock pile were found was large it was three hundred fifty feet that's more than the sixty five feet this court analyzed and hayes it was not there is not evidence that entire area was within a single enclosure officer hyde testified that there were no fences surrounding the foodie property the nature of the uses to which the area is put it was not used for intimate purposes  riley for example the area found to be within the curtilage of the home was a cottage and surrounding kizzy bowen land that the defendant used to house guests and that he had once at one point lived in but there were no structures that in this instance some of the observations were made a mistake human on his own property and of in even with the crime so that's the egg from the year that's the aerial surveillance your honor and that's a separate question so first the question as to the search warrant evidence is did he have a reasonable expectation of privacy in the rock piles on the food the property and we say he did not as to the aerial surveillance that is a separate question because there was the answer is that the supreme court has repeatedly stated that visual surveillance does not constitute a search visual surveillance and i think back to two hundred feet in the air you can look at a plane or a helicopter and you can see a lot of things wrinkle in this case so they used the same type of photographic equipment that was at issue and dow where the court found there is no the supreme court found no reasonable expectation of privacy from a similar height i would note though taking a step back on this did not at waive his challenge to the aerial surveillance and district court that was the district court's ruling said that he didn't properly advance that argument mr segment then waived so this court's analysis should be did the district court abused its discretion in finding that argument wait mr segment waived his challenge to the district court's waiver ruling by reasoning only raising the waiver ruling in a footnote in his opening brief and of course the district court did not abused its discretion in finding that challenge waived the new york northern district of new york local rules much like the rules of appellate procedure require that a defendant not merely state what his claim is but also provide the facts and the law supporting that argument and mr stegman did not do that in his many briefings to the district court may i ask you a question about exactly what the video surveillance tailed i gather some of  x of privacy what he was doing on a public road that's correct even assuming that visual surveillance constitutes a search he had no reasonable expectation of privacy we're else besides the public road was there visual survey enhanced visual surveillance because i understood that the infrared surveillance that you were trying to do on the home yielded no weapons that was it that's correct i mean on  besides on the public road do we is captured by enhanced visual surveillance just before i answer that question i'd like to know the infrared surveillance was not on his home but on the property but as to the aerial surveillance video there is video of mr stegman leaving his home and also accessing various parts of his property for example he accesses the shed where the narcotics were found prior to the drug deal with mr turner and on all of those series you're acknowledging that he has some privacy rights to assert right i think he has a stronger argument of a reasonable expectation of privacy in for example the shed area that was closer to his house of course this wasn't addressed in the district court record below because mr steadman waived the argument and it's entirely possible that he did not have a reasonable expectation of privacy in that shot but certainly his his expectation of privacy there is much stronger than say on the roads or on the footie property why do you think that that expectation is not does not include not having people look at you from four thousand feet in the air with enhan technology well i think because the supreme court has said that visual surveillance does not constitute a search i would note that in serato for example which involved a helicopter involves what you reasonably expect people could see you know in close or beneath areas you expect that your neighbors may be able to see you on your front porch maybe even can see you through your front window but this is a very different environment and the way it was viewed is very different from what we're talking about the expectation that people in close quarters without being seen well and that's part of the reason i point you to zero in that case the defendant had a wreck did a two fences as six foot exterior fence a ten foot interior fence blocking off his entire property from public view and the court still found that he had no reasonable expectation of privacy in the view from a buff in this case you had a privacy fence around part of mr segment's home but it's the areas that he was observed and were visible some were visible from the public road some were visible from the foodie property which is an open field and he has and this court in looking at reasonable expectation of privacy i'm sorry not this court the supreme court has not just looked at what you can see from the road but also what you can see from your neighbor's yard or from an open field next door where i mean the pro you can see what's far away on a plateau but mr if if officers had gone on to the food or property and observed mr steadman approaching his shed from the food or property and he could not have challenge vegetation does not create a reasonable expectation of privacy i'd also note that if you look at the defendant did not raise the jones concurrences in his brief but i was reading those concurrences last night and i think they're really helpful because  court to the extent that the concurrences were concerned about ongoing repeated visual surveillance that allows you to see everything that a defendant is doing that was in the context of new technology that makes it inexpensive and easy for you to track every single movement of a particular defendant and the concurrences contrast did that with traditional visual surveillance techniques which they said are lengthy and expensive and require might require for example aerial support and specifically discussed getting aerial surveillance support and so the concerns that one might have about being able to track someone's every movement just don't exist in this case where you had on five separate occasions expensive airplane equipment surveilling mr steadman movements and again i would go back to the majority opinion in jones that said that visual surveillance does not the supreme court has never held that visual surveillance constitutes a search i would just like to answer one question that judge raggy had about what case law supports the notion that if you have a warrant that has some perhaps over broad language about territoriality but was properly applied that that warrants suppression of evidence first of all here the only question is whether that require suppression of derivative evidence but in any event there is no case so holding glover which is the d c circuit case that said that facial insufficiency requires a mechanical suppression first of all i think that addition glover left open the posix pressley left open the possibility that a mere technical defect would not require suppression of course glover address mobile interception devices not listening posts datta is the first case to find that overbroad language in a warrant constitutes facial insufficiency a couple of things there i think that the language here is somewhat different from the language in datta and when reading context makes clear that the mobile devices are allowed to travel outside the jurisdiction but did not necessarily allow that to be interstate that the listening post could be outside the jurisdiction but in any  event the court found that this technical defect didn't require suppression because of course the recordings were lawfully intercepted as they were here thank you thank you your hon part everybody understood with the president was missing this is language that's in the up order that gives direct authorization to intercept outside of the jurisdiction and there's no difference between actually i mean i was talking about core concerns with respect to subsection one because if it concerns apply to all the subsections then then subsection two and three would be  is different because tracking movements of cars or people through public roadways is one thing but tracking them as they leave their house and they stand next to it in their back yard at least running their houses entirely least and that this were available for the district court the facts he cited the fourth amendment that's he said that the aerial surveillance violated his fourth amendment right to privacy i don't know what more he needed to say clearly he could have expanded on that but it was an insane signing cases but you know all the cases were on their face against him i mean he needed to distinguish them and show why this was different obviously that would have been better had he done so but it was enough for the district  of the bigger picture and really didn't get to talk about it but the necessity problem it really ties into the necessity problem more so than on its own i would say that the that the officers completely failed to mention that they were doing this