appears facially be a fairly complex case and in fact it is to a degree but we have certain rules by the court into very significant decisions that kind of give us a roadmap for where we need to go now e electronic store information but later we find out when the case is progressing that in the report of examination for the first time we learn as the case is going on that under the request we find out on november fourteenth two thousand and twelve special agent michael bodey requested the boat listed specimen which was the fruits of the november twenty seventh search looking for emails etc but it says in addition of this is the will be february twenty eighth two thousand and thirteen so that was after all these severe exactly exactly and if you just do a plain reading at least to me it appears that he's talking about and i don't see where he says this comes later president that you all have created in suppressing the fruits from the nov twentieth search on then what happens chronology in this case of the agents go second search yes up because we haven't i mean i think it's a lot harder question to say that the first search was inappropriate since i believe that they weren't directing the first search towards obscenity  a portion of the early portion of his order on the on the motion to suppress he did say that the second search and the first search were constitutionally infirm those are my words he said they were illegal or unlawful but this is search of november twenty seventh and why that search was no inevitable discovery or good faith is for several number of reasons first of all the the app a day when that was submitted to judge snyder  is a deficient facially and i think but based on the case law because once you exercise the material that's described in that application there is no probable cause on that point on tell us ever what was so there's nothing in the record because that would matter to me if he had just gone back and looked at the same four images that he had found the first time and to better describe them no i don't believe that that stuff that  impermissible information because you have to remember just running to find posts or just illegal so when you excise that information but now postulating we might disagree with that reading on whether the first search w the government vote jump the gun well yes they jumped the gun they started the continue the illegal search from the twentieth on the twenty seventh when they had plenty of time to go and get apply for a warrant you didn't do that another factor is  what partner or where were they in the proceeding when they could have got a second weren't well they clearly could have done it or apply for at any time before coming to across the other illegally seized material general upholding of the exclusionary rule to exclude this evidence we believe that gets in our favor because it's just not one winter air is a series of continuing constitutional violations including the fact is no problem execution of that tree are some of them are twenty that in the in paragraph twenty one says that during the preview meaning number twenty and the examiners identified or right of all c d s which appeared to testified but i can tell you agent craven's could give the court nor the united states any conclusive answer about whether they were the exact same images and in here's why the testimony about this november twentieth twenty twelve search warrant was that the agents were laser focused on simply getting the evidence identified by the first floor so they were asking themselves what is just generally responses doing a cursory review when they ran across the images of child pornography one image on four disks so is the answer that we don't know if they are the same that's right your honor and that's because they weren't interested in child pornography on november twenty when they ran into evidence of and in that case this court held that without a specific description of the images without denting the images to the affidavit that was sufficient for probable cause finding and here you have the same thing in some ways you have more because the agent in in this search warrant the court takes a look at around page forty nine and going one it will find it a gin included a definition of child pornography much more narrow than the statutory definition i about when you just generally use the term child pornography you could be referring to pictures of minors and it may or may not be the c v s depiction of the genitalia shere agent craven's use of the term child pornography in this war is more narrow and he actually specified his experience in this realm eight years is that f b i agent has experience with child pornography cases and in talks about not only in this yet it's by child pornography on november twentieth but  says the examiners and he's referring here to agent issue that i dispute a little that and so help me because i'm looking at paragraph twenty one and what it says is the examiners identified  he just says these other people did that so what we have is him her saying something in the desks not images appear to contain child pornography if you think that's probable cause yes you are not and i do based primarily on simpson but if you look at the way this court since simpson you know it first head were edwards ninety six versus hate him and look at the way the sports characterized the simpson holding and what it says is that a general use of the term examiners in the following sentence examiners identified for right of all cities which appeared to contain images of child pornography  addition to those points or on or she describe a specific place where they were a specific place in the terms of media where they were looking and he also had made two assertions to the magistrate about what to expect in terms of the other media given that there were images appeared to be child pornography on these four day that under simpson in this case is a precedent since simpson we believe establishes probable cause particularly in the way that this court reviews that determination which is one of great deference to the magistrate court all this court have to find is that there is a substantial base for the magistrate to have found that  in judge brown and hundred twenty factual findings you will find nothing in there and nothing in the record to support any claim of bad faith these agents were trying their best to get out of nowhere as residence he wasn't the only residence as you're learning record wasn't the only resident of the house who wasn't the owner of the house you learn that in the record they were simply trying to triage the material as quick as they could and return the house and media that was not covered under the warrant back to its lawful owners so the court could jump there we'd ask the court to make findings on the first issue which is what is constitutionally required of one force and when they run into evidence of a crime not contemplated by the search  t struck by a judge he bellows comment in the first argument post to the appellant that you're asking him are you really saying that somebody has to go run during one of these search warrant a location simply because they run into evidence of another crime that really underscores the unreasonable this of such a requirement i don't think this ports press it requires that i think what do you think is the test if we look at those three cases  a search warrant for one specific purpose and inadvertently encounter evidence of a separate crime when when is that an inadvertent observation permissible i think i think house or hard drives are being examined back at least offices or labs in law where we are still at the point where we're at the residence a place where agents are are in a fluid situation they don't know where things are and they're trying to on conducting a lawful search warrant looking for evidence of that law officers work and not even that much but simply being in a place where the search for allows you to be in a duration where allows you to be that a different result should have been required and so that concurring opinion interest paul that is the one that i would ask this court now to impose on this case i'm i didn't get a very clear statement are you arguing that the statement should read something to  effect and so long as the activity is directed towards the lawful purposes of the search that if other evidence of crime is discovered which itself was not the direct attention of the officers to because you're so eager that we clarify the law tell us in a sense what you would think the law should say so the court has to be careful of court so i think we careful what we promise will be careful do tell us what sense do you think you're trying so hard to get us to clarify the law you surely thought about it you probably written it on the palm of your hand tell us this sentence you would like us to say is the current conservative law sure  warrant doing a cursory review that to figure out what evidence isn't isn't included in the warrant for later examination it repeatedly run across child pornography and the holding in that case was similar to the one i'm suggesting this court should impose which is so long as you're there and really i think what this court is getting to the nuance between technology and the physical realm that gets decided with the  kerry in pointing out some of the concerns that we have about technology for one you're looking if you're looking at a physical container it's hard to determine or it's easy to determine what can and can't be in there it's not true in the electronic realm but i still think the test should be one of are you in a place where you could search in a time when you can search now in the electronic brown case by case this court can decide what's reasonable is ultimately that the touch range of five minutes