good call the first case for today which is united states of america versus richard stanley move your hunter a sense and hanson device to gather information about was nothing voluntary and co in the defendant in that case didn't do anything to to expose himsel ninety five mike with us yes all those were exposed that there was in existence a signal just as mr towser koski revealed that there he was transmitting and receiving a signal as well but that's what's crucial i think so that is what has been disclosed here right and that's the information that there is a wireless card out there that's transmitting that information is that information your example in maryland yes we've got information we've got a good deal or numbers yes where is the information well that's what the third party doctrine talks about is that it's a disclosure of information the disclosure about there is a wireless signal that there is a wireless card with that number transmitting and receiving information the ones and zeros the data but no could there's no content to that information as there was and  this course there's content in that information that's the whole that is that it is in a different form of content i suppose it's different from the numbers dialed then but that's still your transmitting data information vinyl at a signal to and from the phone company just as he's transmitting receiving signals from that router but it's not the information the corporal really cared about but by didn't he take voluntary action to expose it well he did but actually less so that he didn't expose his computer first of all the location of the computer and he didn't expose himsel the burglar of the cabin no it's not because mr stanley was in his own home mr cause a cascade was it was in his own home reaching out and using somebody else's with the whole third party disclosure dr intact i mean that was more the course taken but that's a fair reading but there was also no finding that this was a violation of any stanley's home of course he revealed all this information about his wireless card the data that he transmitted back and forth when he did it but he didn't transmit his identity or the location of his computer and from our point of view is whether or not the activity looks suspicious or it looks illegitimate or it seems to implicate a criminal  put he didn't type information into his computer have you asserted for him anywhere that he's ject of privacy for example you know stanley didn't testify could have very hearing what in the records were other what you just said he was there well first of all he didn't name his computer in such a way that would have revealed to the router when they look corporate the look at the wireless card but it's not identifiable as his he didn't write it and this is richard stanley's computer or there's the fact that he did not use his own computer for this video sharing doesn't that cut against your argument here a legitimate expectation of privacy no it doesn't because just because you may be doing something within your own home that is potentially illegal or ma statement that you just gave in response to jeff's record is not this case it is very it is a very very delineated description so much is really to be inaccurate because what you just stated does not the portland gas and electric company that's how they knew to start looking in that area but was he an authorised to do that the record doesn't reflect that but i wouldn't be surprised if portland gas and electric would turn off somebody's service if they knew that it was being used for something that was publicly dangerous well here we have the searchers surf circumstance where the neighbor learned that his neighbor mr stanley was without authorization using his router to use services of the neighbor with himself paying for why would society recognizes legitimacy in that sort of behavior it may not recognize legitimacy and that sort of behavior but that doesn't mean that pass this conduct upon authorized use that's your view but if he did it in the park bench right outside on the sidewalk from your point of view there's a legitimate expectation of legit next patient privacy disappears only because he went o well then you can see the person using the computer within the rain what difference does that make the question that you have schwartz is just asked really goes to the heart of the legitimacy washington here doesn't again how can there be a reasonable expectation of privacy under these facts s law enforcement officers can't tell ex ante whether that use is legitimate or not necessarily the rule has to be that when people are connecting to a wireless network that they don't have society does or mr moore's yes why should wireless receive greater expectation of privacy in their location than a legitimate internet use that's what you're asking here how is that reasonable how's the public ever going to regard that  i disagree around or what mr stanley is asking for is that he have the same fourth amendment rights as mr khodorkovsky what the information from comcast gave to corporately got corporal earthly to the sidewalk in was able to search them and what we're asking here is that mr causey that mr stanley be treated the same and that corporally can get the house in for earth can get to the sidewalk in front of his home  computer files are coming to this router i corporal early check the router logs and i checked the computers in the home nothing i'm more interested in the  search even pursuant to a warrant he doesn't doesn't the enhanced intrusive does that suggest some lack of a reasonable this even in in the course pursuing the  they grow marijuana in the front row though the warrant wouldn't allow them to bust into every house but it would allow us to is a rather pejorative term we get the was lucky enough to go to the stanleys the first time two other people who were complete innocence should his yes but that's what the fourth amendment does all the time would have your backyard bottle and perhaps mr focus could begin on this point we just left off on before we get into some of the other issues and that is the practicality  of the work process in this situation and how it would work may please the court donovan koch us usa on behalf of the united states our position has been and always has been from the time that we were first consulted by corporate early about potential use of moocher hunter that it would be impractical to go get a warrant would be a general warrant authorizing essentially you know a search of the entire neighborhood and constitutionally that would be prohibited so that's why we decided to use moocher hunters as really our best and and only way to figure out who was filtering internet access to download child pornography from from gaza koski i'd like to begin actually just by making sure all the same page about the same way  facts because it's important upon determining that somebody was using cars and houses router to download child pornography and after ascertaining that no one in cars or calloused house was doing this with his permission and without trespassing on anyone's private property we use move your honner to lock in on the signal being received at the caza callously route or we start there and we go out his front door not knowing where it's going to lead but ultimately finding that it leads us to stanley's front door and the holds and in breeding preparing for this argument i really read the case and i think it uses the term emissions or even needed eight to ten times and basically the whole thing is officers need a warrant when they're going to use technology to detect  missions caused by conduct that it defend it's attempting to confine to his home but that word is not used when justice scalia writes we think that it taining license and hansen pick any information regarding the interior in isolation by the way from what justice scalia wrote twelve years later in jones because he authored the same of be authored the majority opinion there and he said that cases involving the  the transmission of signals without trespass continue to be governed by cats not kyle i'm not trying to get into justice scalia right but jo do you see it in any way undermining smith i don't as long as you read it in the context i mean again the carlow context is emissions caused by conduct to defend it's attempting to confine to his home moocher hunter just going back to move your hundred now that's not what we detect that we detected transmissions active transmissions he was purposely sending outside his home and we did that without we detected those transmissions without tr and under that rubric under i think it's page nine hundred fifty three of jones i mean this falls almost exactly within what jones says situations involving the transmission of electronic signal without trespass are governed by cats and that's why we argued in the district court found that that means stanley has to prove a subjective expectation of privacy and that subsea that expectation was objective way reasonable are physicians always been he never even proved a subjective expectation of privacy didn't testify or offer evidence that either the evidentiary hearings he in fact that sentencing page thirty two of the supplemental appendix i filed he essentially admitted i used this router because i didn't care where my internet access was coming from it was free now i know the district court essentially gave him the benefit of the doubt because as mr moyer says stanley use the computer in his own home in his home so he had that presumption i think well but here's the problem with saying that that's a firm presumption your honor is that when you look at kat's it says the fourth amendment protects people the not places and it doesn't protect what people choose to make public even if the place that used to make it public happens is that a supreme court has treated the home as it has you know and i'd concede that but the problem is he's also conceded it page seventeen of his opening brief that he made public the existence of the signal between his computer and the car so it's this intentional act part that changes the calculus here i think it goes a long way because the intentional act results in a transmission and not in even like we had in cairo and so you know from my point of view that defeats any subjective expectation of privacy and moreover you know all of the hypotheticals he offer presuppose that we looked at the contents of his communication with your hunter and that's not the case as corporal ridley said and i find this metaphor to be very apt but also important for another reason he said the the signal was essentially an invisible co actual cable which we could follow and the reason i think that's important is suppose we've gone to cause house to investigate this crime and instead of finding that someone has stolen a wireless signal someone has actually sort tisha slee plugged a co actual cable into his router but we try to follow it outside in whoever that whoever has done this has been savvy enough to bury it deep underground think so but the court need not even read it that broadly i mean in this case he's not just it's not like someone playing loud music in their house although i think you know police are called to respond to that all the time this is someone sending a signal out to use someone else's property to get on the internet and then make public all kinds of you know all the content that he says we looked at your movies or what are we actually saw long before we use mature hundred just by sitting on the nutella peer to peer network but yet to answer your question i think that's out there i mean if you were transmitting a signal outside of your house and especially if it winds up on somebody else's property using a service that person is paying for it i think you have waived that you have not even stay at least the subject of expectation of privacy even if you  more egregious i think it makes more egregious but i think you're i mean if i were sitting in your position i would probably be careful to please note that this is a very salient fact in this case because i honestly i mean i don't know what the technology is going to hold tomorrow you know if you made a holding that broad i mean i know my folks would love it but i don't know if i'd feel that comfortable just because five years from now something could come out that would make it you know very dubious why doesn't it make sense from your standpoint as well as for digital reasons you've just expressed to go the route of the legitimacy if you will know those of this disclosure as opposed to pure third party disclosure right i mean well you're i mean from our perspective i think i think that what the district court did was arguably both i mean i suck handstand but but my point is aren't there given the evolution of the technology that you have just referred to and that we cannot what we could anticipate is a fact but not in detail right suggest potential for problems right with a more expansive ruling based on pure third party to school there could be i mean if you have consistently used the word signal yes and i'm not sure what that means i mean it does that mean that the entire signal if it was disclosed with third party then exposes the disclosure the person who discloses i to unlimited inspection whatever that is it no i mean we're not we're not arguing that you're i mean we're in this particular case but isn't that a potential difficulty if what if if  third party disclosure doctrine were invoked here to uphold the the the order that you were defending would be if the court were not careful to note and i've tried to note that we only used your hundred to follow the signal as were the virtual co actual here but we did not look at it we did not use moocher hunter or any other technology to examine the content of the signal we say we knew the content because he was making it public over gnutella but we don't need we would not need if that we look to see what society would be prepared to accept and our position has been that pennsylvania's already spoken by saying writing a statute broadly enough to cover this scenario that basically outlines stealing someone else not a dress that real pressed it that hard and frankly it's because like mr morris i looked i couldn't find cases involving a prosecution for this but i think it's certainly instructive as to what the legislature thinks i mean they wrote this statute pretty broadly but even if you put aside the statute assume it's not illegal for stanley to be doing what he did he still has to prove he an affirmative right to be on posit kelsey's router and the reason that's the case is ray has says a person doesn't have a legitimate expectation of privacy in a place he has no right to be he had no right to do this because the calcium imagine i mean that's got to be a tough day for your marriage when the police show up and your wife is there and they say you got a warrant you got a child pornography all of your computers that's  precisely why i don't think the public would be prepared to accept him having an expectation of privacy broader than the one that causes house he had and we know this would be broader because of cause accounts you had in fact the child pornography we would have found it after the execution of that first warrant on the on the theft analogy or the trespass don't we have a problem because it's actually his signal that one that is he didn't steal that that particular sicko he just joined in somebody else's no your honor and he the way the tech the way and i hope i made this clear for him to connect to cause a kelsey's router he had to turn on his computer go to the the the the icon that to that once he gets on to the internet through the router he receives a signal back and they're basically happened simultaneously be like separating the dancer from the dance i would say are so i don't know that it's i don't think this creates a problem situation the district court's ruling the district court side to distinguish high low in one way i'm thinking in particular and that was by saying in that case the agents actually knew the spot the residence the target they were going after and then in this case they did not you don't take up that point and i'm wondering if it's one that you will consider to be to have any particular force you know we i do take it up your honor and the reason is this is why when i was starting out the english in this case from high low i said that this case ends were kind of a begins  begins with officers already knowing the house that they're looking for are the suspecting somebody inside is growing marijuana but instead of stopping in attempting to take a warrant based on those suspicions they centrally conducted a search of the entire house from the outside by using this infrared technology that's not what we did ours led him to his front door we didn't know where in his houses computer was you know we stopped as soon as we learned it went to his house and got a warrant if i could speak just for a minute on the other two issues and see i'm out of time but the tracking device issue of the course the court doesn't have to reach you know unless there's a fourth amendment violation but i would point out just one absurdity i think in the argument or one potential for sur came up the last who ordered it did i mean it is you know if it didn't come up so late that i could say it was waived came up pretty much the time of the hearing but yet they've not even been an opportunity the government not even an opportunity pla right  right what i'd say about that there was you know suppose we'd gone to cause a county house to investigate a stolen computer the actual hardware not a signal and we show up it's a dark pitch dark night can't see your hand from your face but it's freshly snowing and we go inside and cause a couch he says yes someone stole my computer and i left through yonder door because it was open when i got home so the officer goes and looks out the door he can't see anything but he turns on his flashlight and low and be told he sees fresh footprints leading to stanley's house on his logic that flashlight would be a tracking device and by the way the backhoe that i that i mentioned earlier that would be a tracking device i mean that is just i think you have to be it district court cases you have to read the district court cases that i cited which flesh out what i have to admit it's a pretty broad statute about the tracking device and then the last issue about the exclusionary rule i recognize cats and you know came out differently on the issue but it's pending rehearing in bank i cited aguilar in my twenty eight j letter we were just asked if the court decides this case based on the good faith exception to exclusionary rule that holds this matter c a v pending the bank decision in cats and to use the moocher or as i described generally what that might look like but i also want to do attack the the underlying thinking of it which is that here we have the government complaining saying that to get a warrant would have been possible because it would have been too broad an area or and or it lacks sufficient probable cause to justify a search within that area and what's perverse about that is they're arguing look it's too broad or la probable cause for a warrant search so we have to be able to do a warrant will search that strikes me as very odd an inconsistent with the law normally when we don't have probable cause of the scope it's too big  that's going to defeat that's a good reason not to do the search of the fourth amendment so this argument that it was impossible or difficult for the government to get a warrant to use this  underneath the ground to mr stanley's home the government would still need a warrant to dig up the cable once it was on mr stanley's property and it couldn't know for sure where the cable went unless and until it was able to get on the property and see that it went into mr mr stanley's unit and then even still they need a warrant to be able to enter the house and look for where they suspected the cable would and so from our point of view the case wouldn't come out any differently what we're just asking is that when  government or when law enforcement agents seek to pinpoint with accuracy something inside a suspect home that they get a warrant to use that device because it's basically a workaround for