[00:00:02] Speaker 03: Thank you. [00:00:03] Speaker 03: Good morning, Your Honors. [00:00:04] Speaker 03: May it please the Court, Council. [00:00:07] Speaker 03: My name is Dave Mattingly, and I represent Mr. Christopher Boudreau. [00:00:11] Speaker 03: My office is in Kalispell, Montana. [00:00:14] Speaker 03: I intend to reserve approximately three minutes for rebuttal. [00:00:19] Speaker 03: In our briefs, we brought up four issues, really five issues, that these critical mistakes warrant reversal. [00:00:25] Speaker 03: The first issue was the warrant regarding the search of Mr. Boudreau's residence. [00:00:31] Speaker 03: That warrant requested virtually everything from Mr. Boudreau's residence, including electronic devices. [00:00:40] Speaker 03: Detective Waffstedt's affidavit, however, if you look at the four corners of that affidavit, failed to establish the required nexus between the offense conduct or the alleged offense conduct of enticement of Mia and the actual residence, more importantly, the electronic devices. [00:01:03] Speaker 03: The connection or nexus requires a fair probability that evidence of that crime would be located in the residence or on the electronic devices. [00:01:14] Speaker 03: Because that doesn't exist, there is not a fair probability. [00:01:18] Speaker 03: Law enforcement conducted an unlawful intrusion into Mr. Bedro's residence. [00:01:24] Speaker 00: Can we drill down on that a little bit? [00:01:26] Speaker 00: I mean, unlike the Dottry case, here you did have in the affidavit information about the use of electronics in communicating with Mia. [00:01:36] Speaker 00: And you also had information that he had electronics at home and that he'd used them to access pornography. [00:01:44] Speaker 00: So I need you to walk through why that's not enough. [00:01:49] Speaker 03: Sorry, Your Honor. [00:01:49] Speaker 03: I don't think that's clear from the four corners of the affidavit. [00:01:55] Speaker 03: Affidavit states that he watched pornography and had a computer. [00:01:59] Speaker 03: It's silent as far as to internet connection, what devices were there, but if you go back to the four corners, what we actually have is communication that was solely mobile-to-mobile communications. [00:02:10] Speaker 03: The fair probability that evidence exists to search that entire home isn't there because the entire communication was mobile-to-mobile. [00:02:19] Speaker 03: Now the district court [00:02:21] Speaker 03: did reference that the messages themselves implicate the home. [00:02:26] Speaker 03: But I think it's important to note that the record reflects on the warrant that the photos were taken with his cell phone. [00:02:32] Speaker 03: His cell phone is in some of those photos. [00:02:35] Speaker 03: They were selfies with Mr. Boudreaux. [00:02:39] Speaker 03: They were not illicit in nature. [00:02:40] Speaker 03: Some of the photos also included a cat and other photos of like a video game within the home. [00:02:47] Speaker 03: He did not request or receive any illicit photos of Mia. [00:02:52] Speaker 03: And that's referenced in ER 163 in the second full paragraph. [00:02:56] Speaker 03: Nothing implicated those other electronics within the home. [00:03:00] Speaker 03: So it's a little different when we go to Doherty. [00:03:03] Speaker 03: And in Doherty, the officer's experience alone is insufficient to suggest evidence would be found on that computer. [00:03:12] Speaker 04: I could be here if I can interrupt. [00:03:13] Speaker 04: I mean, it's the nature of electronic communications these days. [00:03:16] Speaker 04: I guess he may have used a phone. [00:03:17] Speaker 04: I don't know if it's Facebook or whatever social network it was where he got set the front request. [00:03:22] Speaker 04: I mean, you could use it on your phone, you could use it on your desktop, there could be evidence on the desktop as well. [00:03:29] Speaker 04: Even text messaging, if you use Apple message, you could use it on your iPad or your computer, depending on what it is. [00:03:35] Speaker 04: So given how closely now electronic communication is tied, whether it's mobile or desktop, isn't that sufficient grounds to think, well, there may be some evidence in the desktop as well? [00:03:46] Speaker 03: No, and I think Doherty goes in and Rabe in that case, which is cited in that case also, illustrates the particularity that you need some sort of bridge from that mobile phone to the electronic device that was eventually searched at home. [00:04:03] Speaker 03: I think you need some particularity with respect to that communication. [00:04:08] Speaker 03: Now, going a little further with respect to that question. [00:04:11] Speaker 04: The door wasn't, you know, the allegation there or the facts there was he molested students in the classroom and there's no electronic nexus there and then going to his home and searching his computer is something different, but here it seems like [00:04:24] Speaker 04: Again, given the nature of electronic communications these days, there's a good chance there may be something on the desktop as well. [00:04:31] Speaker 03: That's right, Judge, but in that case, you'll note that the case actually noted that either law enforcement failed to search his work computer [00:04:40] Speaker 03: and or searched his work computer and didn't find anything. [00:04:45] Speaker 03: So therefore, they couldn't bridge that gap to the actual home. [00:04:49] Speaker 01: Now, I think what you'll find here, too, is- Which would be a distinction from this case, where if they went to his phone, they would find that he was communicating with a putative 12-year-old and trying to solicit her for sex acts. [00:05:05] Speaker 01: That's not that much of a leap these days to things on your home computer. [00:05:10] Speaker 03: Well, the distinguishment though here is that later on you find out through trial testimony and through the suppression hearing that Detective Waffstadt had all that evidence on his phone and knew that the mobile-to-mobile texts were the only things there. [00:05:25] Speaker 03: And that was left out of this warrant. [00:05:27] Speaker 03: It was sort of alluded to. [00:05:29] Speaker 03: So if you look at the suppression hearing, he testifies [00:05:32] Speaker 03: to finding the phone in the car when he shows up to Missoula, calling the phone and seeing his name show up as Mia on the phone. [00:05:43] Speaker 03: He also failed to testify or failed to elaborate on the fact that it was, let me step back, this came back out in trial where he texts as Mia, [00:05:57] Speaker 03: that my mom doesn't allow me to use Facebook Messenger, please text me. [00:06:02] Speaker 03: So that's one communication on an internet-based allegation, but it's Facebook Messenger, which we know is a mobile-to-mobile use of that. [00:06:11] Speaker 03: So when you look at the actual evidence here is Detective Waffstedt knew that all the communications were mobile-to-mobile and omitted that factor. [00:06:23] Speaker 03: He then used the interview of my client and asked him, do you have a computer at home? [00:06:31] Speaker 03: And he answered, yes. [00:06:33] Speaker 03: And in a separate question, he asked, do you watch pornography? [00:06:37] Speaker 03: And he answered, yes. [00:06:40] Speaker 03: That's the only implication of computer electronics at home. [00:06:46] Speaker 01: But that is such a small step these days. [00:06:48] Speaker 01: In the Weber case, that was pre-internet. [00:06:54] Speaker 01: And we acknowledge that in our en banc decision in Gord. [00:06:57] Speaker 01: We said the Weber was quite distinguishable because it was pre-internet. [00:07:03] Speaker 01: In the days of the internet, it is a very, very small step to go from, do you watch pornography? [00:07:10] Speaker 01: Do you have a computer? [00:07:12] Speaker 01: To link those two things together. [00:07:14] Speaker 01: It would be unusual if there was nothing on the computer and that all of the pornography was being obtained through the mail or by direct purchase at a bookstore. [00:07:23] Speaker 03: Well, and I think that the district court judge illustrated this point when he stated that exact point. [00:07:30] Speaker 03: And what then comes up is that in this day and age, if we just have a mobile to mobile crime, alleged crime, almost every time you can get to any sort of electronics [00:07:42] Speaker 03: in the residence. [00:07:44] Speaker 03: And I find that an extreme leap given the situation that you just posed. [00:07:49] Speaker 03: Everything is connected. [00:07:51] Speaker 03: Echoes, TVs, everything. [00:07:53] Speaker 03: And I think without the particularity that's required to get to these electronic devices, I think you're then overstepping the Fourth Amendment bounds and intruding into the very succinct or sanctified home. [00:08:06] Speaker 01: What do you think is your best case for this? [00:08:09] Speaker 03: So I think the best case on this is Doherty and then taking it further. [00:08:13] Speaker 01: And Doherty's unusual because this is not a criminal action. [00:08:16] Speaker 01: This is a 1983 suit. [00:08:18] Speaker 01: It's a question of immunity. [00:08:21] Speaker 01: And you have a plaintiff there that we already know was never charged with anything, including the pawing at the junior high girls. [00:08:30] Speaker 03: Well, and I think if you go further into the Gord case and the other cases cited within Doherty where they went into the home and cases after the fact, there is something connecting either an ISP, either an independent email address, either a website where they go to search for pornography, something attaching to this particular home that's not just within the officer's experience. [00:09:00] Speaker 03: And what I mean by that is essentially, if you go further, well, let's step back. [00:09:11] Speaker 03: What actually I think law enforcement put the horse before the cart is what they should have done, because they had it, is get the search warrant on the phone, search the phone, because they had all the evidence that they knew of. [00:09:26] Speaker 03: with respect to enticement of Mia. [00:09:28] Speaker 03: Then in trial and in the suppression hearing, more testimony came out that they did look at the phone, found no particularized evidence about other enticement, other photos, other screenshots of purported minors or people who look like minors. [00:09:45] Speaker 03: They found no other information or texts to anyone else that was a minor or reasonably believed to be a minor. [00:09:56] Speaker 03: And so given that, and they found no other evidence that this phone actually syncs up to the computer, there's nothing in the warrant that even suggests that the computer is hooked to the internet, now that can be a reasonable inference. [00:10:11] Speaker 03: But when you take all these steps, I think the fair probability that evidence of the enticement would be within those electronic devices is lacking, and it's not a fair probability in that case. [00:10:23] Speaker 03: And to take that step further, [00:10:26] Speaker 03: is that then you go back to the reliance on just the statement that electronics are automatically synced to either an internet or mobile to mobile device. [00:10:41] Speaker 03: And I think that's too far of a step without something else to indicate that an actual electronic device or internet enabled device was used at the home other than the mobile device. [00:10:56] Speaker 03: and therefore you can't get to the fair probability that evidence existed within those electronic devices. [00:11:06] Speaker 03: And so to go on to the next point that I made in my brief that I think is important is, and it's sort of the third, well, the second and third issue with respect to the Hope evidence and Ms. [00:11:23] Speaker 03: Joinder. [00:11:24] Speaker 03: And if your honors have any questions on that, I'm getting close to the time that I wanted to reserve. [00:11:30] Speaker 03: I will entertain those questions or reserve the last three minutes for rebuttal. [00:11:35] Speaker 04: Great, thank you. [00:11:36] Speaker 04: Thank you. [00:11:49] Speaker 02: May it please the court, I'm still Tim Tatarka on behalf of the United States from the District of Montana. [00:11:57] Speaker 02: When this court reviews the validity of a warrant, it reviews to ask the question whether or not the issuing magistrate had a substantial basis for finding probable cause. [00:12:12] Speaker 02: In this case, it's beyond dispute that there was probable cause to believe that Mr. Davis had expressed sexual interest in children and was attempting to [00:12:28] Speaker 02: to doing an attempted sexual assault of a minor. [00:12:32] Speaker 02: It is also undisputed that he was using internet and digital means to do so. [00:12:39] Speaker 02: So the only remaining question is whether or not there was a substantial basis to believe that there would be evidence of that offense on his home electronics. [00:12:50] Speaker 02: Given the interconnectivity of digital media [00:12:56] Speaker 02: and the uses of a computer that the affiant testified to, that there is absolutely a substantial basis. [00:13:06] Speaker 00: I have a different question, I guess, aside from the digital reality of the world. [00:13:12] Speaker 00: So it's clear from the investigation that's laid out in the affidavit that you'd have a fair probability of searching for evidence related to enticement. [00:13:22] Speaker 00: There's a lot of stuff in the affidavit that talks about child pornography. [00:13:26] Speaker 00: And it's less clear how you bridge that gap. [00:13:29] Speaker 00: So what's the argument there for, based on what they knew about this defendant and his interactions with Mia online, that they were going to have a fair probability of finding child pornography? [00:13:42] Speaker 02: Two answers to that question. [00:13:44] Speaker 02: Well, I'll just answer the question directly. [00:13:47] Speaker 02: So as I said, his sexual interest in children, certainly there's a probable cause of that. [00:13:59] Speaker 02: His discussions, what he actually did in terms of showing up to meet her with condoms and candy, [00:14:09] Speaker 02: So he had established a sexual interest in children, including, in particular, I would recommend the court's attention to, and this is an excerpt from record page 163, his stating that he wanted to be her personal photographer. [00:14:24] Speaker 02: I think that language tied with the language of the fact that he was acknowledged viewing pornography and declining to identify his search terms is a sufficient connection there. [00:14:40] Speaker 02: Oh, and I want to add one more point to that, which is the fact that he, and again, this is in the affidavit that he said, digital records can get me in trouble. [00:14:52] Speaker 02: But that didn't stop him from immediately continuing that conversation to engage in. [00:14:57] Speaker 00: Yeah, but that would go to enticement, right? [00:14:59] Speaker 00: I mean enticement and pornography are two different charges, two different crimes. [00:15:03] Speaker 00: And so. [00:15:05] Speaker 00: It seems to me the argument that you're making boils down to, if we know somebody who's sexually interested in kids, we get to look for pornography too, even without any other indication. [00:15:14] Speaker 02: So we absolutely get to look for evidence of Mr. Boudreau's sexual interest in children, including visual depictions of sexual. [00:15:28] Speaker 00: Is that argument then, if I have probable cause to find evidence of child enticement, also necessarily? [00:15:34] Speaker 00: have probable cause to find evidence of child pornography. [00:15:37] Speaker 00: Is that your argument? [00:15:38] Speaker 02: Not necessarily, but in this case, or excuse me, child pornography is one type of evidence that they could legitimately look for knowing that he was using digital devices to entice children. [00:16:00] Speaker 02: It isn't just the child pornography that they could look for. [00:16:06] Speaker 02: Again, the evidence of his interest in children would include what search terms he's using, both in terms of what search terms he's using to seek out visual depictions, as well as the search terms that he's using to track down someone like Mia on his social media. [00:16:28] Speaker 02: Again, absolutely in this case, one of the things that they could legitimately look for are visual depictions of a sexual interest in children. [00:16:41] Speaker 02: As I say, that's one piece of this. [00:16:48] Speaker 02: It is also important to note with respect to that overlap between [00:16:55] Speaker 02: the phone and the computer, to go back to Judge Lee's question, the affiant testified expressly, this is an excerpt from the record page 168, to the fact that even if communications are being done on a mobile device, there's likely to be a record of that found on a home device, either intentionally, as the affiant [00:17:21] Speaker 02: noted because this this is valuable these individuals highly value this information and and are likely to try to store it or even if this were something along the lines of a seek and delete [00:17:40] Speaker 02: behavior, there is still often, because of the syncing and backing up that happens with digital media, likely to be a record of a trail of that activity on a personal computer at home. [00:17:57] Speaker 02: And again, I would point to the fact that this connection between the sexual interest in children [00:18:09] Speaker 02: And especially an interest in visual depictions of him, the fact that he wanted to be a personal photographer, that tied to his interest in pornography is absolutely a connection that there could be a [00:18:29] Speaker 02: that there is a substantial likelihood that there would be evidence on his home computer. [00:18:33] Speaker 00: One key piece of evidence that's missing from this case that is often present in cases like this is in all the text communication between the defendant and the real or undercover person that they're communicating with, that there's at least a request, hey, send me a photo. [00:18:55] Speaker 00: Or often even an exchange of photos, inappropriate photos. [00:18:58] Speaker 00: We don't have any of that here. [00:19:00] Speaker 02: Well, there actually were inappropriate photos sent, memes. [00:19:08] Speaker 02: It wasn't pornography, but there were memes. [00:19:11] Speaker 02: I acknowledge that is not in the affidavit. [00:19:13] Speaker 02: But to answer the question about, but as a matter of fact, that was [00:19:19] Speaker 00: there and well there's no doubt that there's sexual communication happening right like you can't misunderstand what's going on in terms of his intention in communicating with what he thinks is an underage girl but what I'm getting at is sort of the same question I was asking before of just because you have [00:19:38] Speaker 00: reason and evidence to think that one crime has been committed does not necessarily mean that that translates into also another crime. [00:19:46] Speaker 00: So if you have facts where somebody isn't trying to entice a minor and in doing so is specifically asking for inappropriate photos of that minor, then there's no bridge to gap because child pornography is baked into what you're trying to do. [00:20:00] Speaker 00: That's not happening here. [00:20:02] Speaker 02: But child pornography is not the only thing that can be sought for. [00:20:05] Speaker 02: And again, this is at excerpts of the record. [00:20:10] Speaker 02: I believe it's page 161, which is the first page of the affidavit, which is what evidence is being sought on these computers. [00:20:16] Speaker 02: It is not being sought solely for child pornography. [00:20:20] Speaker 02: Again, visual depictions of children certainly illustrate that. [00:20:23] Speaker 00: That would make a lot of sense if the government was making a plain view or good faith argument. [00:20:28] Speaker 00: But as far as I understand, you're not. [00:20:30] Speaker 00: And so the question I come back to is, is this warrant, is all of the specific information in this warrant driving at child pornography over broad based on what facts were actually presented? [00:20:45] Speaker 02: No, Your Honor, because visual depictions of children are one form of evidence that displays Mr. DeBoudreau's interest, sexual interest in children. [00:20:59] Speaker 02: The fact that this crime was committed using the internet and digital media is sufficient reason to search Mr. Boudreau's digital media for evidence of that crime, including the visual depictions of child pornography. [00:21:23] Speaker 02: And again, and I would make one more point, which is a common sense one. [00:21:31] Speaker 02: This Mr. Boudreaux went from seeking out someone he believed to be a 12-year-old girl to sexually explicit communications to showing up in Missoula with condoms and candy in a span of eight days. [00:21:50] Speaker 02: It is absolutely [00:21:53] Speaker 02: a reasonable inference that this was not his first attempt at enticement or his first expression of a illicit interest in sexual material related to children. [00:22:11] Speaker 02: And that is expressly discussed in the [00:22:17] Speaker 02: affidavit that in addition to the visual depictions, what they can search for are evidence of other victims, evidence of what search terms he was using to go after, to find someone like a 12-year-old girl, what other [00:22:39] Speaker 02: things he was doing to evidence of, again, what other friends he had made as he friended this one with respect to those juveniles. [00:22:52] Speaker 02: All of that goes to evidence of attempted sexual enticement of a child, regardless of the visual depictions. [00:23:05] Speaker 02: And unless the court has any further questions, either on this issue or any of the others. [00:23:16] Speaker 04: Great. [00:23:16] Speaker 04: Thank you. [00:23:16] Speaker 04: Thank you. [00:23:26] Speaker 03: Thank you. [00:23:26] Speaker 03: So to address counsel's [00:23:31] Speaker 03: comment about personal photographer, I will note that the communications were inappropriate as far as eliciting what he believed to be a minor. [00:23:41] Speaker 03: But as the judge pointed out, there was no [00:23:45] Speaker 03: talk about any illicit pornographic photos of a child, no requests for nude photos within these texts, no photos sent from my client that were illicit or pornographic in any way, shape, or form, and then [00:24:06] Speaker 03: with respect to looking for more evidence of child enticement, Detective Waffstedt did that. [00:24:14] Speaker 03: He grabbed the phone, looked through the phone, and he testified at ER 456 that he knew at the time of the arrest that Mr. Boudreaux viewed Mia's Facebook and that was it. [00:24:27] Speaker 03: He looked at this and he testified about the SMS text via Facebook Messenger. [00:24:33] Speaker 03: He knew that. [00:24:34] Speaker 03: Waffstedt testified at trial after the fact that he confirmed no illegal photos were on that phone whatsoever. [00:24:43] Speaker 03: He testified that no child pornographic images were on that phone at all. [00:24:49] Speaker 03: He didn't find any other evidence of child enticement. [00:24:52] Speaker 03: And the important point here with respect to the child enticement is all the evidence that supported that. [00:24:58] Speaker 03: He had all of it, and he confirmed that on the phone, on Mr. Boudreaux's phone. [00:25:04] Speaker 03: He had all of that evidence already because it was sent to him. [00:25:07] Speaker 03: He knew it was there. [00:25:09] Speaker 03: And this overbroad warrant then leads a magistrate to walk down this path that [00:25:16] Speaker 03: based on just experience and just his experience in investigating these, that there is child pornography at his home on his electronic devices. [00:25:27] Speaker 03: And that is not supported by a fair probability. [00:25:30] Speaker 03: And if this court were to find that, I would submit to you that then anyone that commits a crime on the phone, you can get into the home and start looking through people's electronic devices that are not tied to any images, not tied to anything with respect to the actual offense that occurred. [00:25:45] Speaker 03: And the case is cited in my brief. [00:25:48] Speaker 03: albeit different types of cases in some instances, all had some fact particularly implicating a specific electronic device at the home that they eventually searched. [00:25:59] Speaker 03: And that did not happen here, Your Honor. [00:26:02] Speaker 04: Is there, could we draw a distinction between, it seems like the warrant targets partly the enticement, maybe relate to the specific facts, and then perhaps a bit broader, just child pornography in general, maybe not related to this. [00:26:16] Speaker 04: The warrant is focused more on the child enticement of the facts here. [00:26:20] Speaker 04: Is that more appropriate as opposed to broad? [00:26:23] Speaker 04: Well, then, you know, he must have been involved in other child pornography. [00:26:28] Speaker 03: Well, I mean, I think you could argue the appropriateness of that particular warrant, but I think if you still go into the four corners of it, it still doesn't get you to the house because anything tied to this enticement he had, he was trying to get into the house for one purpose, and that was to find what he suspected based on experience as child pornography. [00:26:44] Speaker 03: So, you're in a sense right, but I think you still need more to implicate with particularity the electronic devices in the home, your honor. [00:26:55] Speaker 04: Thank you. [00:26:56] Speaker 04: Thank you. [00:26:56] Speaker 04: Thank you both for the helpful argument that the case has been submitted.