other taxes and then that technology is going to change and with technology changes our lives are going to change and when our lives change three judges sitting here and nine in d c have to decide how that impacts the fourth amendment and how them fourth member is going to interact with those changes in technology and we've seen best we saw that person kyla with infrared technology then we saw it in jones with g p s technology and we saw i riley with this cell phone and they're ubiquitous and today mr feather leaves out of the small trailer park and rice lake wisconsin presents presents this court with opportunity to rule on how technology has changed with the use of w that's a question before this court now is home says the life of the law is one of experience and experience is showing and the case law we've cited it establishes that when it comes to why five is near ubiquitous every place you go from walking down the street here from from my hotel to anywhere i go in my neighborhood the wife five flashes up and that a lot of that why fight that ability to go and connect on someone else's network changes the way that we have to analyze warrants and we analyze probable cause it doesn't give a higher standard it just calls for more investigation and this court gave the first indication of that in the mylan versus bolen decision there and said look preventi police decisions you've got to go in checked out whether or not it's an open network then it said it's a failure of responsible police practice and those aren't like measured words or like wow you know you could do it maybe the best case scenario  practices are x you know a failure of responsible police practice to go out there and just pick up your cell phone and see if the network comes up if there's an open network and if so you need to investigate further that's the heart of this case and the reason that you need to investigate further is because you don't have probable cause anymore the best of the government can offer this court is a case with facts twelve years old and the decision ten years old out of the fist circuit th case is both not binding on this court nor is it really worth any precedent to be no different than of our income before the court with the case from the cell phones in late one nine hundred eighty four when there are huge and don johnson had him driving around miami it's a bug that's actually not the kind of cell phones that we're talking about now with some of mean computers that's not the kind of internet access we're talking about any more we're now talking about the ability for everyone in the neighborhood everyone in that trailer park everyone that visited the trailer park everyone on the outside on the street within one thousand feet to be able to connect to father lee's network it was responsible police practice and one that they needed to do to go and check out was wife why they could have been used and then again we don't know how many people are using it inside the trailer park we know they're probably men i mean everybody has cell phones these days everybody is hooking up on the internet i mean hooking to the internet and in those cases you were able to  because it is and when you think that if a judge wouldn't turn away someone who said you know what i was able to track into the modem and the wife i signal stretched out it probably hit about eighty different trailers which could have been four hundred people any one of those four hundred could have been it but i want to go in target this guy why what more proof do you have if it's a failure of responsible police work it is a kind of this court criticizes the mylan versus  if it's the kind that would get someone turned away from a magistrate judge or an article three judge it's the kind of investigation that this court has to demand and the failure to demand it is a failure to recognize the way the technology has changed and that's what this court has to do technology has made it so that it's not good enough to just go in and say i got to the modem got to the white guys probably there and it's not just for mr federally if that's the who other people could be hopping onto and using your honour's it's on that basis that i asked that this court reversed and remanded because that cuts to the core of it there was not probable cause if they trace the the wife i simply into the mode of getting the modem is not enough used getting the modem only gives you less than probable cause it gives you reason to investigate further and the government skip that st and that's not a step that this court can't demand that's not a heavy burden that this court be placing upon all of the police everywhere appealing out throw up their hands but other goes some circuit again just handicapping us now well this is a kind of thing we study in the that most officers do and most times when we have these cases they don't investigate six times to go even went out to federally stranger all we're asking for is that when they went out to featherless trailer they take out their cell phone and they look is there another network is it an open network and it buys the court of those conditions because those conditions are exactly what the court needs to know that's what the court wants to know and that's why here they papered or i'm uncomfortable with this and i thought of this a lot everybody owes kandor to the court i owe it to the court every every body who comes here and police even heightened when it comes to an ex parte proceeding before a magistrate judge before any judge you just have compliment i don't know we're going to go but it sounds pretty good and then i thought you know what i brought my stylus and my stylus operates in conjunction with the computer so it's actually a computer and sorry to say that just cheney of course running i brought my answer and my credibility of everything that it should stand for the other to affirm here is to say that's ok to say that answer the whole of the stylus and like you know what it's in conjunction with it's ok hopefully he won't ask a follow up question but here the dillies defense counsel asked a follow up question where does it really go he only went to the stats that's all they had they only had them why five they only had them the wireless network that was it the failure to go this ip address returns to char and so that's that's all of what's so that the charter is synonymous with the modem itself it didn't give him any more it's just the same amount of information so federally has leased the modem and the information went to that modem and then  hopping on your network that's easy as a directional antenna and would cost one hundred dollars from radio shack so the police who could do that second thing they could do is go make sure that they have another download this was only one download session it lasted i think four hours because it goes i think eleven pm to two am it won't it says investigate further the same thing that the court asked for and mylan versus ball and that's all it is is prudent police procedure go on and do a little bit more investigation and your honour's that's actually what it a good judge could ask you know hey what are you going to do more what else could you do here in the police and said you know what we were able to take a directional antenna and we saw that there were four guys were there  those four guys like who's living in feathers does anybody else have a sex conviction what else is going on there that's a responsible police practice that this court would be asking for and i think that's the motive come of good police work because actually what mylan demand they were here in the one nine hundred eighty three lawsuit i'd be a good foot if i'd probably make a lot more money of them are per person salary but i think we would have a true reversal here and then we'd be talking about damages instead of coming here in the fourth amendment context and the way to do that i morning your honors mr bagnet may please the court my name is elizabeth altman and i represent the united states in this case mr bradley just told you that tower technology is changed is the question before this court that is not a question before this court the question before this court that the issue this case is a review of the for the district court's rulings in a friend's case the question before this court is whether or not the search warrant affidavit contained a false statement that's the question before this court and the district court said that it did it and that factual finding is reviewed for clear air the district court didn't even go to the remaining steps of the analysis because she specifically found this report specifically from the agent in a lie end of story and i suggest that that's the question for this court and the court can end its inquiry right there as the district court did if the court wants to go into the other two factors to be considered in the franks motion in the denial of the franks hearing the defendant's motion is still not successful because i think that if it would have to show is that the false statements the alleged false statements and the district court already found it wasn't there was made with deliberate or reckless disregard for the truth the agent in this case testified and he said that he believed that a computer and the modem fit within the statutory definition of a computer he testified for the for the court that he didn't make a mistake he didn't lack by definition there's no way that that could be an intentional false statement he doesn't even think that he made one and he didn't make one according to the definition of computer th thing that the court would then have to consider is whether or not the false statements are missions were necessary to a finding of probable cause and that's what the defendant wants you to look at the defendant wants this court to look at it as a probable cause hearing not the denial of frank's hearing but even if the court looks at it as a probable cause hearing the defendant still cannot prevail what the search warrant says what we knew in the search warrant and what we would still know today even if the word computer was replaced you get back to this probable cause  not the false statements or omissions were necessary to a finding of probable cause i think you get there in a friend's hearing but you first have to show a false statement and that it was made with deliberate disregard and then you get there in a probable cause hearing you just say on  face the search warrant didn't establish probable cause i think that and it's a subset i guess of the franks hearing one of the three things you have to find i submit you don't get there but i would also argue that even if you do get there you can't meet that element either and that's because what we know and what we would still know even if you replaced the word computer with modem which is which is what the defendant claims should have been said what we would still know is an ip address issued by charter was assigned to the defendant's home through some device whether it was a modem whether it was a computer whichever you want to call it it was assigned to the defendant's home not to charge or the second thing we know from the affidavit and that we would still know if the word modem was used instead of a computer is that someone using that ip address distribute child pornography to an undercover officer that is probable cause to get you into that house there is going to be of child pornography download in that house whether it's on a modem whether it's on a computer some other device the i download of the child pornography has been tracked to that residence and that establishes probable cause  talk about three of the i guess criticisms there are things that the defendant says could be done should be done first of all the defendant suggested list cases where agents went to a residence to determine whether or not the wireless connection was secured or unsecured that's all well and good and i'll talk about it more when i when i mentioned the me on case in a minute what happened in this case is the downloads were in may of two thousand and fourteen may fifth two thousand and fourteen by the time the officers get their subpoenas do their investigation go to the residence for the first time it is june of two thousand and fourteen six weeks later in many cases it doesn't happen within six weeks this court handles stillness cases where cases are sometimes a year later you know eighteen months later by the time they get to the residence there is absolutely no way an officer who goes out with his device or whatever the defendant says that he should use to determine whether or not the wireless connection is secured is going know the status of that connection six weeks earlier he may well be able to say on today's date on june sixteenth or or nineteenth is an unsecured wireless connection but he can't say what it was on june fifth of two thousand fourteen so the search warrant would say on today's date i determine x i have no idea what it was on the date of the downloads that is not helpful it is not useful to us to a district court with  similar to this case it was a case on excessive force and a summary judgment motion they had another suspect who the two of the officers testified believed it was the other person who was responsible for the crime who lived two days before or i'm sorry the two doors down and in conjunction with the timing argument in milan and i think this is perhaps the most important thing it was the next day from when the threats were obtained and when they got the ip address so while there is still the possibility that the status of the connection network changed within a day it's certainly less likely than in the child pornography cases that we see that happened weeks months years later the last thing i will talk about a much it's only the second to the last the idea that my stylus here is a computer defies common sense and the court knows that it is to read search warrant applications and magistrates and district court judges are to read us after they've it's given the common sense meaning everybody knows that a computer is used to connect to the internet otherwise it would be a typewriter and to access to the internet you have to have some sort of communications device and that is what is contained within the definition of computer is the commonsense reading of the statute nobody is going to be you know here's my stylist it's a computer that defies common sense and this really truly is the last thing i am going to say is that i don't think that we get there but if the court finds for some reason that the search warrant did not establish probable cause because the word computer should have been replaced with a modem the agents acted in good faith in executing it the magistrate court who issued and signed the warrant said so the district court didn't even get there because the clear on the technology i tried to strip it out of the brief so that we could give you the fundamental principles but the internet doesn't go they don't have actually have an ip address to the computer by p address goes to a modem that's exactly what charter so so they don't actually know that there's going to be evidence inside the house evidence is on a computer the modem contains nothing you can't listen to a song on a modem you can't look at anything on a modem it just processes it it's just a port and the way you understand that is going to decide where the problem cause is because it is on a computer prayed all lands all those cases yeah you get the search warrant there's probable cause but only goes to a modem it just means it's one of the portals there nothing about evidence or a value there and that's a critical point when evaluating this case the other way i think just to talk to question probably cause and frank's look there one in the same we're all practical people here if it didn't matter for probably cause i'm not arguing this case and if it didn't matter probably cause then why paper over it and not use the word mode now granted my stylus question might have been a little awkward but i don't want to carry up here like my you know i wan kids of the you know wireless for a day but i brought up my modem it would be a little awkward but the stylus has exact same logic that the government would have this court adopt it's in conjunction with it's the same thing we use precise terms because they have meanings and those meanings convey a lot of information when it comes probably cause and others here they said the word computer when they knew it was a modem and the modem is only a portal that portal contains no information and it would not have any contraband on it and tellingly the government doesn't sees the motor they never do no they never took it is left the modem there been so important it is going to have information and that's what charter went to then why not seize it their ac belie their actual belief and the final point on it when it comes to this case you know everything says that he would be turned away now why use different words ok i'm not inside the soul of agent hauser ok but if you go in and you say only goes to modem you have greater scrutiny is the same way that this court judges cases of omission when you take away you know how many times of this nature the cooperating witness good you know arrested those are important details and the recklessness system is not putting those in there i don't know the man's conscience but i know that saying modem gets you sent back out there do some more