it's number one four four two one two united states of america versus christopher d rhetoric arguments not to exceed fifty on used to garner  honor the first search of the defendant's phone chris rare was overly broad and because it was overly broad it was not a good warrant the second item is that the manner of the search was unreasonable and we say unconstitutional so you can use your first statement was what was overly broad the search of the warrant i didn't hear you use me the affidavit for the search warrant and the search warrant the documents themselves they were overbroad and i i have them here and i'm looking at them the court also has and if you look at this two page affidavit just looking at the affidavit itself it says all information within the above listed items indoor devices including but not limited to and then it lists a lot of  data you know what type of data then it goes to paragraph to any and all communications in electronic form including but not necessarily limited to e mail chat capture captured files goes on and on then it goes any and all the tronic data contained in the devices memory as well as other internal external removable data and again it goes on and on finally it two more paragraphs stating what type of information and then it says all other fruits and instrumentalities of crime at the present time unknown i mean i have the same reaction like oh my god this is like so rob but don't get cases say that well the first thing you do is you look at that authorization in the context of the rest of the affidavit so it limits it to looking for evidence of this particular crime meaning something on the phone showing what was filmed or recorded audio and that and that you can have a really broad warrant for electronics because you don't know where it's going to be i mean i thought the case is sort of allow that your honor i i would i would disagree especially on this case this cases  of driving under suspension which is a misdemeanor and obstructing official business which is a misdemeanor to lesser than driving under suspension which means that someone hinders or somehow interferes with the officers duties and we know the date the date is specific you know that this occurred it happened on february fourteenth two thousand and three and i looked at the search warrant i looked at the affidavit looked at there was another document here an attachment and the date was not even now what and not only that the last paragraph of the application you know i told you about any evidence of any crime that's in there and then lastly the officer testified that he was searching for everything in the warrant or everything in the cell phone everything he made no bones about it now we couldn't he say that server should have asked the shooter search for that date now the court the trial court anyway and the government says well you know we may miss it if you just search for a filter with a filter that's what that's what i'm trying to say to you i mean what would you say if asked to you is i'm saying right now you know it's strikes can be some have it's problematic for a court to get involved in the minutia of saying well in order to go about this in a reasonable manner you had to start with using a date filter i mean that just seems it seems to me that that's the kind of thing that our court in richard's was really trying hard to avoid and rather was saying you know what as we almost always do in fourth amendment cases what is reasonable all you know can be a variety of things and it's going to depend on the circumstances but if if you say the only the reasonable way to approach this search would have been to use a date filter that just seems to put the court in a problematic row with respect to assessing the reasonable as the kind it is that first we have to know enough to doubt that that's probably the most directed way to go about it second we have to require that all officers who search electronic devices know the narrowest why i mean g c e any problem at all with that from the standpoint of outlined i mean you go back to the about three months ago i would agree with you that it would be problematic however this is an officer that testified that he hundreds or sleep scores of these types of searches and those filters are out there this is not something that is you know wh  standard what the conscientious to fit the warrior would have found out is that the standard for the officer no but i think for the officer here the officer has to follow the fourth  amendment and the fourth amendment in the fourth limits says the reasonable the only reasonable way to have gone about this search would have been to start with the date filter directly describing the items to be searched and the places that goes again to the specificity of the war right and there is no specificity in this war well i'm now we're back to we're back to the voters to argument yes well the first argument the one that we're talking about here is whether or not allow time many children argument the date filter that would have been a tool that's that they have they have these in is a matter of fact the argument was well we may not find we may and may not come up we may not find the particular conversation that we're looking for and that's what they were actually looking for the audio i don't think they were really looking for anything else because the audio of what the defendant very clear and obvious are made or were going through was the evidence that i think officer megger was concerned about that would have been the audio and the audio was there they'd have the data they call it medhat data the date stamped on there so it would have come right up they didn't know that they didn't know first of all it was video or audio and they also didn't know whether he did anything with it so that it was buried somewhere that's correct and they've and i understand what you're saying that they didn't  know whether it might show up somewhere else because it was emailed or stint to a third party or any of those and i answer that like with this then they speculated what they did speculated they said well we don't have any evidence real evidence that he didn't he thing but we're going to we're going to rummage through his personal items anyway whether or not he was even close to the date of this incident but they didn't maybe i misunderstand the facts i thought that the first thing he did was pull up whatever videos were there and then just sort of look at the bundles and go directly to the one that he thought was outside the building and answer  no that's not what happened what happened was is that the officer downloaded all of the evidence on all the all the files  do that to to open then that you had to download everything first that's their policy they are then loaded everything onto the computer and then what he did rumaging if you open them up to see if there's anything interesting there well as a matter of fact that's how we found out that there were child pornography videos and child pornography pictures because he did open them up otherwise you couldn't see him the files are closed i thought the testimony was that he sort of scrolled through the thumbnails saw what looked like the and when he scrolled through he noticed that there were thumbnails of child pornography then he gets to the video and the video is talks about a beige wall and now this beige wall that he talks about i says well maybe that's the tobacco store you know the beige wall that's that's his excuse the only thing is that it couldn't be the it couldn't be because if you look at what really happened at the scene was that rerig got out talk to the opposite and then when the officer in him had a disagreement as to what her authority was to check his record that's when he pulled it out and he pointed her there was no wallet at all he opened that he opened that up in other words he didn't rummage is what i'm saying i mean he doesn't know what your client has been doing i mean the fact that you might perceive that the action was occurring someplace else doesn't me mr rarey didn't video something else that was he could have but that wasn't the testimony the testimony was that he had in his pocket and they took it out of the spa could and then you know when there was a disagreement there was a disagreement then he took it out of his pocket pointed it at her and said he was recording it thank you counsel we will be your five minute about time fishel business real i'll just be upfront with you i'm really struggling with how anything that happened here falls under the way elements and what the obstruction official business was here was rare disputing arguing family cooperate with the officer when she was trying to run his what if i were to tell you that that doesn't actually qualify in ohio as obstruction official business if that didn't let's just assume that for a moment if that doesn't then there is going to be any evidence on that phone of a crime because the other crime was that he was driving under suspended license and clearly there's no evidence on that phone that goes to that well not only is to the obstruction and it's not a crime in ohio or anywhere else to my knowledge to pull out your phone and record or video record your encounter with the police officers correct and that is correct but that's not the entire obstruction but that's not what made up that that was the basis for the obstruction and the basis for the obstruction was him disputing with the officer whether she can even run is played him does disputing with the officer whether he could she could hold him while he was running and play it while she was running a play on him refusing to go back to his car and wait while this was being sorted out those were the those were the what if ohio law says refusing to cooperate is not obstruction in fact none of the things you've just described are the start of obstruction what if ohio law requires and if firmly to act against the police officer not just a i'm not going to i'm not going to i'm not going to but in a firm it is action on the part of the individual i think there was an affirmative act and what was that oh he refused to go back to the car he refused what if there's case law that says that's not obstruction that's refusing to cooperate but ups official business obstructing official business as opposed to hey i'm not going to help you do what it is you think you're going to do to me but getting in the way of their attempt to investigate something that's obstruction but that's not what he was doing he was saying i'm not going to what you're telling me to he was in a way getting it he was good at getting in the way of what she was trying to do to the point where she felt she had to call for backup why did she have to call for backup because he was p was he was so difficult during the stop officer testified and testify but in the report said he failed to cooperate in all respects in the style and at that point she felt she had to call for backup and that's why he was charged with obstruction not because he's a state recorder the record aggressive toward her well he came out he pointed the phone at or said it's you know what it was i'm not saying that the recording is obstruction it's not you can record you can take your phone and say i'm recording this and that she objected to very strongly well she asked him not to do it but she gave him the phone back or he took the phone book the phone back and that's one of the things that she points to his obstruction it's really just his complete failure to cooperate and well that's only obstruction if ohio law says that a complete failure to cooperate is obstruction but if it doesn't facts here were he was obstructing justice that the existing cooperate not that he just didn't answer questions he was arguing he wouldn't go back if he potentially create a safety concern he won't go back to his car he won't sit down he won't do anything he said on the hood of the car  at this point the officer felt that she needed assistance and that's it but the first warrant is only obstruction but of course at that point she already had everything she needed for the only thing she really had against him which was he was driving under a suspended license bright white why didn't she just say to him you're driving under suspended license i'm sorry you're going to have to sit in the back of my car and i'm going to impound your car instead of saying no you can't record this please you know please go do x y or z put down that phone give me the phone i mean i'm not i sound like i'm second guessing or i guess i probably am but when you have a completed problem a completed offense and you sort of create another one and that's the basis for a very very broad search of a phone with a warrant that and an affidavit that don't even includ date that's that's trouble it really was in the completed offense at that point he was arguing as well that his license wasn't under suspension that he had cleared that up she was trying to which she said sort this out which is why she asked him to just relax it's quite frankly if mr record cooperated and has gone in certain his car now this would have ever happened to mr erik brought this on himself it wasn't the officer arguing with him but  he if if the point is that every citizen has an up or has an obligation to simply do exactly what he's told by the police then every time a citizen doesn't then you have an obstruction offense  that's also troubling but it's not that every citizen has to do exactly what they're told by the police and every moment he is in a different situation he's she's the officer sees the car runs the plate realizes that they don't know who the owner of the car is and that the owner of the car's license is under suspension at that point you know she follows him into the tobacco store and he's in a different situation now if that's rick she's trying to find out if that's if that's even the owner of the car still she doesn't know all she knows is that who the owner is and that his license is under suspension she doesn't know that's him at this point she's just sitting outside the back of store when he comes back out and confronts her that's when the situation justify this broad broad warrant you've got the possibility reasonable cause to believe that the phone that you have since this whole thing may have a recording of this incident in one way or the other how do you justify this warrant that basically says go forth and search whatever you can find on this phone is yours it was a broad warrant but the warrant was brought in the sense it was still limited to looking for obstruction of official business but in anywhere in the phone and then i mean that's sort of the lead but you're getting that from the attachment and the case law yes yes and that's really it's not booked through the phone for whatever you want it's like for the phone least the first time was look for look through the phone for obstruction and it was and the testimony was why it was so broad is because they didn't know what he had done they didn't know if he did if it was an audio recording a video recording that what the officer did he didn't do did he look for obstruction complete computer download it onto the police computer and then and then look through the follow look through the what was on the phone on your own computer but how i mean should there be any effort you say that the warrant only authorizes to look for evidence of obstruction but then isn't that the way the search should be conducted to look for evidence of obstruction or look where that evidence is likely to be found because otherwise it doesn't matter what you authorized to search you're going to get a full search of the phone the testimony again this goes back to whether you can limit or so back to where you where you can limit the search like that with through a filter a date filter time way depending on how things are saved things are created how there anymore but what is the answer then to the obvious question you said he's not authorize to look for anything he's authorized to look for evidence of this kind well that's fine but basically you're saying the way you do it is to download everything on the phone and then you can look through everything on the phone to find that but that then then it's a totally meaningless qualification to say that you're looking for evidence of this crime you're looking for everything because you're looking at everything it's like saying that you know you can look through every single drop drawer in the house to find the  because the elephant could be because it's a computer the elephant can be in the drawer so it's why should there be no and i agree with judge givens you don't want to get into the minutiae of how you execute an electronic one but i mean why shouldn't there be some client meant that the government first look words likely to be otherwise you can see everything well i think the  was trying to do that he opens up on his own computer what's on the phone he works and is you all talked about during mr x part of this argument he sees the mail and some of these files have pictures zick still pictures and some are just have a they have dates that all of them some do some don't and that was the testimony aren't they don't even have a date in the warrant of the affidavit and of course that doesn't much matter you can say well we don't know what they were looking for so we have to look at everything well the date doesn't again and again and again the date might not be but aren't they downloaded in order i mean if you download pictures i know the most recent ones are at the bottom isn't it like that with downloading the videos and the audio recordings to be honest i don't know well i would assume so so why didn't he open the always but why why shouldn't there first why shouldn't you first look where it's most likely to be i think you tried to do that while he was going to the videos he sees child pornography goes what looks like thumbnails of child pornography he goes to the one video that you discussed about the beige wall thinking that might be the tobacco store he opens it that's video child pornography and he stops ok you're saying that the thumbnails were clear that they were child pornography he said they it was suspected child pornography it looked like chopra not ok so then the very fact of downloading the entire phone will so new that there's child pornography and that sometimes depending on how it's stored and how it saved and how it's created and why did they have to download the entire phone because they didn't know here what he did with the they they were unsure of how this was stored how it was created how it was saying whether it was deleted whether it was e mail whether it whether it was stored in a manner that would somehow hide it whether the technology on the phone was newer than what the apps earch applet they used could find they said that this changes so rapidly that the most a fashion efficient way to to do this is to look through every file and even anything of a criminal nature on their cell phone even the witness you're just subject to having the government take your phone and download through he was looking for obstruction official business everything concluded no is it really likely that you're going to find evidence of even if the crime was obstruction in the g p s function but that was certainly polluted in what was to be searched now he has never testified that he used the language from ohio girl from a criminal investigation because he felt that they might be the ones that have to search the phone because initially he couldn't get into the phone because mr herrick wouldn't give him the thank you judge if if the court and i'm sure the court has looked at by now but if you look at the affidavit paragraph and numerical paragraph number six all other fruits and instrument tallies of crime scroll through the they call him j pegs those are the pictures and scrolled into the videos so what eisenhower did was he actually see the evidence by putting it on to his computer and then he inspected all of the evidence just by going from the the audios pictures to the videos and that's when he saw the authorized to search for anyone i had the wart been a lot more specific i disagree with then you don't have to that's a policy i the policy was to download everything onto the possible for you would have been entitled to you an officer would have been in time no matter how you did it to look at video evidence in to look at photographic evidence buried anywhere but b but it wasn't in this case here can i ask one more question yes your argument is not that probable cause did not exist for the offense of obstructing official business or whatever it is under ohio law is that right after i heard judge backyard that's correct it's not  think if this would have went to trial just on that we would have been a hard press for the state to win the well that's not what exactly would i ask you but yeah you know there was something there he was arguing with the police officer he was arguing but i think you know it was kind of borderline you know whether or not he actually had any it was just been close to committing the crime that he was being accused of the court asked about the elements just do any act that hampers or impedes a public official in the performance of the public officials beauty that's that's the those are the elements your honor and i'm not quite sure it existed here i think he was trying to get out of it he was trying to get out of the ticket actually i think it was a little bit deeper i because i think he had some mental problems and he was a and i said this it was a cry for help because of what he was going through at the time but it but in this situation this is about the broadest search warrant that i've ever seen and not only do we have the words in there saying we want to see everything in there we have the police officer who supposed to be specific saying that he it was his intent that's what he wanted to do he wanted to search everything whether it was related or not to the to the to the case in who said that the officer he he was  eisenhower asked for the right to search everything on this phone transcript are you fifty four i d four hundred lines ten to twelve he made no bones about it  and you're right that's how they're trained and they're trained incorrectly are they not trained that way in part because so often when they're searching a phone is an instrument of the crime th i'd i would disagree on and i think that they teach them that because they just want to make sure that they see everything they can on the phone which i think is in violation of the fourth amendment and i think the way that this officer acted and not only judges and lawyers are supposed to respect the fourth amendment so are the police officers and they're supposed to be all kinds of stuff and all kinds of places you're going to find col history which is very significant you can find voice mails you asking plenty of photographs of drug dealers taking pictures of them say i was dripping with jewelry or whatever it is i mean there's there's just a lot of different location you know in those crimes where they're investigating a conspiracy twenty or thirty people involved going months at a time those kinds of cases you want to have a wide spin but in this case we ha a misdemeanor to obstruct an official business where it you know we're talking about whether or not there was probable cause even to arrest him for obstructing official business so there was such an easy way in fact he came there he actually went there said he would aid the police officer in tracking down the date and the police officer says no i can't have you do that you can be here when i'm looking at that's not policy and i guess my point is is that if there's something left for the fourth amendment in cellphone cases it has you have to you have to have some degree of specificity particulary in this case there is indeed your expert to agree to the palos to the practice of downloading everything and then looking he said that was a way to do it he says that that is what they teach the police officers you know how to do it and he said it was the most and he didn't say reasonable he said it was like the most efficient way of doing it which i fear the most efficient way of doing it is downloading everything and going but that is not the most reasonable when you have a privacy right like the fourth amendment thank you coun