[00:00:00] Speaker 01: Call the next case, USV Rustin, 24-3054. [00:00:05] Speaker 02: Judge Moritz, and may it please the court. [00:00:10] Speaker 02: My name is Dan Hansmeyer. [00:00:11] Speaker 02: I'm with the Kansas Federal Defender's Office, and I'm here on behalf of the appellant, Richard Rustin. [00:00:16] Speaker 02: So we've asked this court to vacate some language in a search condition involving computers and electronic devices. [00:00:25] Speaker 02: We've done that for three independent reasons. [00:00:28] Speaker 02: Before I get into those reasons, I do want to sort of maybe put this in context why we think this issue is important. [00:00:36] Speaker 02: So where I'm at in Kansas City, you know, this is supposed to be a special condition. [00:00:42] Speaker 02: Last February, we started tracking our PSRs to see how often this comes up. [00:00:47] Speaker 02: And I just wanted to tell you what I found, that of the 48 PSRs that we reviewed, 34 had this condition. [00:00:56] Speaker 02: So that's around 71 percent of the PSRs are including this search condition, which I think is kind of high when you consider that it's only supposed to be a special condition. [00:01:07] Speaker 02: Of those 34, I think five were sex offenders, which this condition does apply to sex offenders according to the statute. [00:01:16] Speaker 02: So that's still around 68 percent a number. [00:01:19] Speaker 02: So this case is important, at least we're on that, because this is a condition that is imposed pretty much all the time. [00:01:27] Speaker 02: Okay, so with that, we have two arguments under section 35D1 and one argument under section 3583D1 and one argument under section 3583D2. [00:01:46] Speaker 02: The arguments on section 3583D1, we are relying on earlier settled precedent and the statute's plain text to argue that this condition, this specific language authorizing computer searches should be stricken because it is not reasonably related to the nature and circumstances of the bank robbery offense. [00:02:10] Speaker 02: I mean, I feel like we pretty [00:02:13] Speaker 02: Went pretty hard at this in the briefs. [00:02:15] Speaker 02: I'm not sure how much I want to regurgitate. [00:02:18] Speaker 02: Bottom line is that the statute includes a conjunctive and to, you know, conjoin the four factors. [00:02:25] Speaker 02: I mean, I don't think there's any way to read that other than that it is a conjunctive and to the extent that there's prior precedent sort of rewriting the statute from an and to an or. [00:02:36] Speaker 02: We would just ask you to ignore it because there's earlier settled precedent that does not do that. [00:02:42] Speaker 03: So that's essentially... Is the Han case one of those cases that you're referring to? [00:02:52] Speaker 02: That's not one of the cases that I'm relying on now. [00:02:57] Speaker 03: Does that case help the government here? [00:03:02] Speaker 02: Han? [00:03:03] Speaker 02: I don't know about Han to the government's sight. [00:03:06] Speaker 02: I did not. [00:03:09] Speaker 02: That's not a case that I'm familiar with at this point. [00:03:13] Speaker 02: I think I do know what Han is, but I don't remember it being at issue here. [00:03:25] Speaker 02: So Han comes after... [00:03:31] Speaker 02: Obviously the precedent we're relying on and Han comes after Rojas too, so I'm not sure what you get out of that case Okay, okay, sorry So that argument I think is about as straightforward as it can get You know I mean we went through [00:03:59] Speaker 02: through in the briefs how various canons of statutory construction support our argument and how these cases, especially in the reply brief, I went through all four of these cases and explained how these 20th century cases, how the fact that the condition had to be reasonably related to the nature and circumstances of the offense was at issue, was dispositive. [00:04:21] Speaker 02: It was part of the holding. [00:04:23] Speaker 01: Only Barajas raised the issue, though, distinctly. [00:04:29] Speaker 01: Where the issue was almost exactly worded as you worded here, we decided that issue. [00:04:37] Speaker 01: I understand there's language in some other cases that may seem inconsistent, but I didn't see, and you discussed many cases, pre and post Barahas, and I didn't see a single one where the issue was squarely raised as it was in Barahas. [00:04:55] Speaker 02: So I think when you look at the other cases, you will see that defendants in those cases made the exact same argument that the defendant in Barajas made. [00:05:07] Speaker 02: I mean, when you read the opinions, they say the defendant in this case is challenging the condition because it is not related to the offense of conviction. [00:05:16] Speaker 02: I mean, that was the argument. [00:05:19] Speaker 01: Well, I think they used that language, because that's the statutory language. [00:05:23] Speaker 01: No one really broke it down. [00:05:25] Speaker 01: I didn't see that anyone asked us to break it down as you are. [00:05:29] Speaker 02: Well, so I don't really think that that happened in Barajas. [00:05:34] Speaker 02: I think Barajas just did it. [00:05:37] Speaker 02: That's my take on Barajas. [00:05:39] Speaker 02: I mean, my take on Barajas was that it came to this court in the same procedural posture as every other case where a defendant is saying, this isn't reasonably related to the offense of conviction. [00:05:49] Speaker 02: In the prior cases, this court [00:05:51] Speaker 02: took the issue head on and decided whether it was or it wasn't or whether it needed to be remanded for factual findings on that issue. [00:05:59] Speaker 02: And then Barajas comes up, and I think it just sort of happened that the court decided to go on its own path and sort of change that into an or. [00:06:14] Speaker 01: Well, it seems like that was exactly what Barajas was about. [00:06:17] Speaker 01: We specifically said, defendant complains only that the two conditions imposed here are not reasonably related to the first listed factor, the nature and circumstances of the offense, and the history and characteristics of the defendant. [00:06:28] Speaker 01: I mean, I'm not arguing. [00:06:29] Speaker 01: In fact, he focuses only on the first portion of that factor, the nature and circumstances. [00:06:33] Speaker 02: Oh, absolutely. [00:06:33] Speaker 02: No, I'm not arguing with that at all. [00:06:34] Speaker 02: And I don't know how it could get more specific, but... I guess my point is that when you read the other cases, that's exactly what... I mean, I guess I could pull up the language and quote it. [00:06:44] Speaker 01: I didn't see language quite like that, I guess, but... Okay. [00:06:47] Speaker 02: Well, I think if you go back and look at those cases... Okay. [00:06:51] Speaker 01: Is there one in particular? [00:06:53] Speaker 02: So I think Ensminger is a good one. [00:06:55] Speaker 02: Let me see if I can find... [00:06:59] Speaker 02: Yes, so here is Ensminger. [00:07:01] Speaker 02: We're on page 1147. [00:07:02] Speaker 02: Finally, Ensminger challenges the imposition of special conditions of supervised release relating to financial disclosures and restrictions. [00:07:11] Speaker 02: He contends that the conditions are not reasonably related to the crime of conviction, full stop. [00:07:17] Speaker 02: That is the exact same argument that was made in Brahas. [00:07:21] Speaker 02: And instead of saying what the court said in Barajas, the court in Innsbinger said, well, it is related, so you lose. [00:07:28] Speaker 01: Well, again, we just quoted the statutory language there. [00:07:31] Speaker 01: And we didn't define the issue as we did in Barajas. [00:07:38] Speaker 01: We didn't say whether it would be appropriate, even if it wasn't reasonably related. [00:07:41] Speaker 01: We just listed it. [00:07:44] Speaker 01: I think there is a distinction. [00:07:46] Speaker 02: I mean, I don't know why there would be because, I mean, the statute is the statute. [00:07:51] Speaker 02: I mean, if prior cases are giving a place text interpretation of the statute. [00:07:56] Speaker 01: Nobody asked us to break it down like that. [00:07:58] Speaker 01: That's what I'm saying. [00:07:59] Speaker 01: I mean, we use this language, but no one except for in Barajas and you right now, I don't see that anyone asked us to break that language down in the way that you are. [00:08:11] Speaker 02: Yeah, I mean, I guess I don't want to go around in circles on this. [00:08:14] Speaker 01: Yeah, I understand. [00:08:14] Speaker 02: It is what it is. [00:08:15] Speaker 02: I do think that those cases, there's really no way to read those cases without the premise of those cases being it has to be reasonably related or those four cases we talked about don't make sense if the condition doesn't have to be reasonably related. [00:08:32] Speaker 02: But I can pivot to our second D1 argument. [00:08:35] Speaker 02: And I just want to be real, this is a very, I don't know, [00:08:40] Speaker 02: Also, clean argument, I think. [00:08:42] Speaker 02: We're relying on page 29 and 30 of our brief. [00:08:45] Speaker 02: There are a series of cases from this court that essentially talk about how these conditions can't just be imposed based on some random thing in a person's past. [00:08:58] Speaker 02: And we think this case falls within that line of precedent, because you're talking about one Facebook communication on one [00:09:06] Speaker 02: At one point, nobody even knows what it's about. [00:09:11] Speaker 02: Well, we know it's about a stolen vehicle. [00:09:12] Speaker 02: Some woman steals a vehicle and asks for us and if he wants to buy it. [00:09:16] Speaker 02: It's just so minuscule to think that it's going to justify this computer search condition. [00:09:23] Speaker 02: And that's basically the argument. [00:09:26] Speaker 02: And I think it flows naturally from the cases we've cited on pages 29 and 30. [00:09:31] Speaker 02: So I think you could easily just say, [00:09:34] Speaker 02: Putting aside our first argument, this just isn't enough. [00:09:38] Speaker 02: You just can't pick one line out of a PSR and include something like this. [00:09:42] Speaker 02: There has to be more. [00:09:44] Speaker 02: If you don't buy that. [00:09:45] Speaker 03: Yeah. [00:09:46] Speaker 03: Council, can I just jump in? [00:09:48] Speaker 03: I was interested in your starting comment about your review of the PSRs and that this condition is [00:09:58] Speaker 03: being routinely included. [00:10:02] Speaker 03: Have there been any cases that have vacated a computer search condition like this one? [00:10:12] Speaker 03: I know you've got cases you're citing for your argument, but have you seen any cases when it's been a computer search condition along the lines of this one? [00:10:25] Speaker 02: Well, certainly, I don't think this court has done it. [00:10:28] Speaker 02: whether some other court of appeals has done it. [00:10:31] Speaker 02: I assume if I would have found that case, it would be in the briefing. [00:10:35] Speaker 03: So I'm not... I assume if you found it, it would be. [00:10:39] Speaker 03: Yeah. [00:10:40] Speaker 03: I'm asking you anyway. [00:10:41] Speaker 02: Yeah. [00:10:41] Speaker 02: So I mean, I guess standing here right now, I'm not aware of a case. [00:10:46] Speaker 02: Yeah. [00:10:48] Speaker 02: But again, I mean, I'm not sure. [00:10:49] Speaker 02: Typically, when these search conditions are challenged, they are challenged, like the entirety of the search condition is challenged. [00:10:56] Speaker 02: I'm not aware of anyone who's challenged specific language within a search condition like we're doing here. [00:11:01] Speaker 02: I don't know if that's helpful. [00:11:06] Speaker 02: So just to pivot to our 3583d2 issue, so just to be clear on this, [00:11:17] Speaker 02: The district court's justification for the condition had to do with monitoring Rustin's communications based on this one Facebook communication. [00:11:27] Speaker 02: And we've explained that under 3583D2, this condition should not, can't involve greater deprivation of liberty than is necessary. [00:11:36] Speaker 02: So our bottom line point, when you get to 3583D2, even if you make it past D1, [00:11:44] Speaker 02: this condition could have been written more narrowly. [00:11:47] Speaker 02: It just could have. [00:11:48] Speaker 02: I mean, the government's response on this is non-responsive. [00:11:52] Speaker 02: I don't know that the government understood the argument, but I didn't get anything from the government on my actual argument that this condition could have been written narrowly. [00:12:03] Speaker 01: How would you suggest that it be written? [00:12:06] Speaker 01: I'm not saying you're wrong. [00:12:07] Speaker 01: I just wonder what you might suggest. [00:12:09] Speaker 02: So I think if the district court's concern is with Rustin's [00:12:12] Speaker 02: electronic communications, then the condition should authorize searches of his electronic communications, not the entire device, not all of his computers. [00:12:23] Speaker 02: It needs to be more specific. [00:12:26] Speaker 02: So even if we are losing on everything else, I do think that that specific point is well established in this court's precedence. [00:12:33] Speaker 02: There are several cases that we've cited in our briefs where this court has [00:12:37] Speaker 02: has said that this condition could have been written more narrowly and remanded for the district court to write a narrower condition. [00:12:47] Speaker 02: And with that, I will reserve the remainder of my time. [00:12:51] Speaker 02: Thank you. [00:12:52] Speaker 02: Thanks. [00:12:57] Speaker 04: Good morning, Your Honors. [00:12:58] Speaker 04: Again, James Brown for the United States. [00:13:00] Speaker 04: May it please the court. [00:13:01] Speaker 04: Your Honor, we're asking this court to affirm the district court's special condition under an abuse of discretion standard. [00:13:08] Speaker 04: The district court did not abuse its discretion in any way, shape, or form in imposing this condition. [00:13:13] Speaker 04: First of all, with respect to defendant's first argument, the condition had to be [00:13:18] Speaker 04: reasonably related to the nature and circumstances of his offense. [00:13:21] Speaker 04: Barajas squarely forecloses that argument. [00:13:24] Speaker 04: The district court did not abuse his discretion by following what this court said in Barajas and following what this court said in the Mike case and in following what this court has said in repeated cases, affirming and reaffirming what this court said in Barajas about 3583D1. [00:13:42] Speaker 04: The court could not have abused his discretion and just followed the law set down by this court. [00:13:47] Speaker 04: As Judge Moritz has already pointed out, no pre-Barajas case that we've been able to find. [00:13:54] Speaker 04: held that a special condition must be reasonably related to every factor referenced in 3583D1 because those cases did not squarely consider that question. [00:14:05] Speaker 04: The language that the defendant cites in the pre-Barajas cases is basically reciting the statute, but did not reach the issue that was reached in Barajas. [00:14:16] Speaker 04: Barajas remains binding precedent of this court. [00:14:18] Speaker 04: It's not been overruled by this court and its rationale has not been undermined by any Supreme Court case. [00:14:25] Speaker 04: So we think that resolves the first point the defendant makes under 3583D1. [00:14:30] Speaker 04: The defendant's second point is whether the condition reasonably relates to [00:14:40] Speaker 04: any other factors of the 3553A factors referenced in 3583D2. [00:14:45] Speaker 04: The district court found that they related to the nature and circumstance, excuse me, not the nature and circumstance defense, but its history and characteristics and the need for deterrence and the need for correctional intervention. [00:15:00] Speaker 04: We don't think that that [00:15:02] Speaker 04: that finding is an abuse of discretion. [00:15:05] Speaker 04: The defendant used Facebook to communicate with somebody who had stolen a car to buy that car that he knew was stolen after he committed this offense that directly relates to his history and characteristics and intervening [00:15:20] Speaker 04: in his communications, which can obviously be contained in his electronic devices, is a way to foreclose or prevent that or deter that from happening in the future for him. [00:15:35] Speaker 01: Couldn't it be more fine-tuned? [00:15:37] Speaker 01: Why isn't this a deprivation of liberty greater than necessary here in terms of what counsel suggested was that they could perhaps have access to his electronic communications? [00:15:50] Speaker 01: which is exactly what we're talking about with a single Facebook post on one occasion. [00:15:56] Speaker 01: We're talking about his electronic communications. [00:15:58] Speaker 01: We're not talking about stored data of any kind. [00:16:02] Speaker 01: Why do they need access to his entire computer when this is the only basis we're seeing for this? [00:16:10] Speaker 04: Well, Your Honor, we think that the condition is sufficiently [00:16:17] Speaker 04: restrained or it does not involve a greater deprivation of liberty than necessary because the court the probation officer needs a reasonable suspicion the defendant violated the condition The court the probation officer has to they need a reasonable suspicion, but then they can look through his entire Computer his entire device well They need reasonable suspicion that the areas to be searched contain evidence of the violation and the search must be conducted at a reasonable time and in a reasonable manner [00:16:46] Speaker 04: So we think that there is no greater deprivation than necessary. [00:16:49] Speaker 01: So you're saying that they couldn't, if the suspicion was that he had a social media communication of some sort, that in looking at his devices, they wouldn't be able to search beyond his social media communication? [00:17:12] Speaker 04: They need to have reasonable suspicion. [00:17:14] Speaker 04: that the areas to be searched contain evidence of the violation. [00:17:18] Speaker 01: In this case, the area to be searched, isn't it the entire device? [00:17:23] Speaker 01: Isn't this how it's worded? [00:17:24] Speaker 01: Well, an area... I mean, without the condition itself being limited, I don't know how they would be limited. [00:17:31] Speaker 04: Well, you know, the court's point is well taken, but I think the way that the condition is written [00:17:39] Speaker 04: The probation officer can search the defendant's computers and other electronic devices based on reasonable times, based on reasonable suspicion at reasonable times and in a reasonable manner. [00:17:49] Speaker 01: The computer, the device, the entire device for whatever. [00:17:54] Speaker 01: There's no restriction there. [00:17:56] Speaker 01: I certainly wouldn't read it that way. [00:17:58] Speaker 04: Well, if I were the probation officer, they could certainly read it to be... Okay, let's say that they have information that he used a [00:18:08] Speaker 04: a Facebook account or use one of his devices to communicate with somebody else about robbing a bank, which is what he did here. [00:18:17] Speaker 04: And let's say the defendant deleted the communication, but that communication appears somewhere else in his computer, say on the cloud or say in some file somewhere. [00:18:28] Speaker 04: How else are we going to get that communication unless we look at the entire device? [00:18:33] Speaker 04: And that's where the reasonable suspicion part comes in. [00:18:35] Speaker 04: You have to have reasonable suspicion that he did something that warrants the probation officer looking at his devices. [00:18:42] Speaker 04: So we think that you have to have a balance between you have to have an effective condition. [00:18:49] Speaker 04: You can't just say, well, we're [00:18:52] Speaker 04: We're going to limit ourselves to searching for this communication without being able to look in areas of the computer where the communication may be found. [00:18:59] Speaker 04: That would make the condition annulty. [00:19:01] Speaker 01: And everything else while you're at it. [00:19:03] Speaker 04: Well, but we have to keep in mind that the defendant does have a reduced expectation of privacy because he's a parolee, and that this condition does not invade a fundamental liberty interest either. [00:19:13] Speaker 04: So we're just balancing the fact that he is a probationer subject to conditions by the court [00:19:19] Speaker 04: And he doesn't have exactly the same rights as everybody else, but he does have rights. [00:19:23] Speaker 04: And those rights are still being respected. [00:19:26] Speaker 04: And his liberty is not being unduly deprived. [00:19:30] Speaker 04: But the condition has to be effective, and has to be able to be carried out in an effective manner. [00:19:34] Speaker 04: Otherwise, it's basically a nullity. [00:19:39] Speaker 00: That's why you're saying that the reason the probation officer can search the entire device is because [00:19:47] Speaker 00: If they have reason to suspect that he's using a computer for child porn, that child porn could be embedded in almost any subject line or part of that computer. [00:20:00] Speaker 00: Is that your argument? [00:20:01] Speaker 04: That's one way of looking at it. [00:20:03] Speaker 04: Let's say he was communicating with other people online and distributing [00:20:10] Speaker 04: child porn through, you know, one of these peer-to-peer networks. [00:20:12] Speaker 00: Well, we have to assume that the probation officer suspects that. [00:20:15] Speaker 00: Some confidential informer or something said it's happened. [00:20:19] Speaker 00: So they've got a reason then to invoke this office. [00:20:22] Speaker 04: Probation officer has to have reasonable suspicion that he's using the computer to commit crimes, basically, yes. [00:20:29] Speaker 01: Well, it's the condition itself that has to be reasonably related to his history and characteristics. [00:20:34] Speaker 01: And the problem that we have here is there's just not very much there about his history and characteristics other than one social media. [00:20:41] Speaker 01: communication. [00:20:43] Speaker 01: So that's, I mean, you're going past the real issue here, which is this particular condition, this special condition, and whether it's even reasonably related to this really broad, really broad special condition that apparently is being used fairly regularly more as a standard condition, it sounds like. [00:21:04] Speaker 04: Well, we would disagree with the defendant's characterization that this [00:21:09] Speaker 04: this communication was just a one-off. [00:21:11] Speaker 04: It was really completely de minimis. [00:21:14] Speaker 04: The defendant basically obtained or used the internet or used Facebook to get control of a car that he knew was stolen. [00:21:24] Speaker 04: He used that to commit a crime. [00:21:26] Speaker 04: So we can't really [00:21:28] Speaker 04: really say that, oh, this was really nothing. [00:21:30] Speaker 04: It's just a one-off. [00:21:32] Speaker 04: It doesn't really make any difference. [00:21:33] Speaker 04: And what's behind it doesn't justify this. [00:21:36] Speaker 01: I didn't say it was nothing. [00:21:37] Speaker 01: It was reasonably related to the history and characteristics. [00:21:44] Speaker 01: History and characteristics might by itself imply something more than a single communication. [00:21:50] Speaker 01: OK. [00:21:53] Speaker 01: I'm just asking that, I guess. [00:21:55] Speaker 04: Let me go at it this way. [00:21:56] Speaker 04: His history and characteristics shows [00:21:58] Speaker 04: that he uses electronic communications to either commit crimes or help other people commit crimes. [00:22:05] Speaker 04: That's part of his history and characteristics. [00:22:07] Speaker 04: And even if he does it just one time that we know about, that doesn't mean it's of any less importance than if he had done it three or four or five or six or ten times. [00:22:18] Speaker 04: He still used it to commit a crime. [00:22:19] Speaker 04: That's a big thing in our view. [00:22:22] Speaker 01: Yeah. [00:22:22] Speaker 01: If this is being used, do you disagree with this? [00:22:26] Speaker 01: I mean, and I understand this is outside the record, but what Mr. Hansmeier said about the kind of the percentage of cases in which you're using these special conditions. [00:22:40] Speaker 04: Do we disagree with his statistics? [00:22:44] Speaker 04: Yeah. [00:22:44] Speaker 04: We trust that he's looking at statistics. [00:22:46] Speaker 01: I mean, is it in most of the cases? [00:22:48] Speaker 01: You know, it's really not something- The special condition is appearing? [00:22:51] Speaker 04: It's not really something that I've personally been focused on, and this is the first time I've really seen this appear as an issue in my sort of appellate world. [00:22:59] Speaker 04: So if he says that's what the cases show, I have no reason to question that. [00:23:03] Speaker 04: But it hasn't been popping up as an issue in our office, and I work in the Topeka office. [00:23:07] Speaker 04: But maybe it will in the future. [00:23:12] Speaker 03: Council, on this issue of no greater deprivation than necessary and the scope of the special condition, I've been wondering about what is meant by other electronic devices. [00:23:30] Speaker 03: We usually just think of laptops or cell phones or that sort of thing, but there are a lot of electronic devices that collect data [00:23:41] Speaker 03: that wouldn't really fit into those categories. [00:23:44] Speaker 03: So it seems like the special condition is quite broad by using that term. [00:23:55] Speaker 03: Why doesn't that give us some concern about whether the deprivation is no greater than reasonably necessary, given that it's so open-ended [00:24:07] Speaker 03: In this day and age, there are a lot of electronic devices that collect a lot of information. [00:24:14] Speaker 04: Well, Your Honor, we of course agree that there are a lot of electronic devices that collect a lot of information. [00:24:20] Speaker 04: But we think that the fact that any one of those devices could be used to further a crime or promote a crime or commit a crime, then we need to be able to search those devices in order to adequately supervise this probationer. [00:24:35] Speaker 04: And we don't think the condition, just because it covers lots of devices, doesn't mean that it's overbroad. [00:24:43] Speaker 04: If those devices can contain a communication, there's no other way. [00:24:47] Speaker 04: to effectively have this condition of supervision without including all devices? [00:24:53] Speaker 03: Does it have to be a communication? [00:24:55] Speaker 03: Is it just a communication? [00:24:58] Speaker 03: Could it be monitoring equipment, health information? [00:25:03] Speaker 03: And there's just all kinds of, is it just communications? [00:25:09] Speaker 03: Well, it sounds like it sounds like what implicit in your response is is all this is tethered to the reasonable suspicion aspect of the condition. [00:25:20] Speaker 03: Is that is that fair? [00:25:21] Speaker 04: That's that's that's fair, Your Honor. [00:25:24] Speaker 04: That if we have reasonable suspicion that he's that he's committing a crime by using his devices or communicating with his devices, then we need to be able to search any device that could contain a communication that is used to commit or promote a crime. [00:25:38] Speaker 04: If we can't search all the devices, then that means the defendant can use an excluded device to commit or promote a crime, and that would make the condition basically ineffective and essentially a nullity. [00:25:50] Speaker 00: I was troubled by that argument, but now I've come back and looked at the actual special condition. [00:25:56] Speaker 00: It actually goes further than what people have been saying. [00:25:59] Speaker 00: The condition says an officer may conduct a search pursuant to this condition only when reasonable suspicion exists that you violated a condition of supervision. [00:26:09] Speaker 00: That's what we've been talking about. [00:26:11] Speaker 00: But the condition goes further. [00:26:13] Speaker 00: It says, and, that the areas to be searched, you have reasonable suspicion that the areas to be searched contain evidence of this violation. [00:26:25] Speaker 00: So I don't think it is a special condition that you can search [00:26:29] Speaker 00: electronic stuff for everything. [00:26:31] Speaker 00: I think it is authority that you can search electronic devices, but that the areas in those devices that you search, you have to believe that they contain evidence of this violation that they may. [00:26:51] Speaker 00: Is that right or wrong? [00:26:52] Speaker 04: I think that's correct, Your Honor. [00:26:54] Speaker 04: And that's one reason why we don't think it provides greater deprivation than reasonably necessary to effectuate the condition. [00:27:06] Speaker 00: So it is more narrow because of that. [00:27:07] Speaker 00: That clause somehow got dropped out of our conversation. [00:27:11] Speaker 04: Well, Your Honor, I did mention the clause when I was interacting with Judge Moritz. [00:27:15] Speaker 04: I did mention that we need a reasonable suspicion for the particular area searched. [00:27:19] Speaker 04: If I wasn't clear, I do apologize for not being cleared with the court. [00:27:23] Speaker 01: I guess I just understood then in further questioning that you were suggesting that there wouldn't be a restriction because if someone had deleted a communication and they needed to go in further or, you know, if they were searching for somebody, something, and they couldn't find it, they might just need to go. [00:27:41] Speaker 04: Well, we would still need reasonable suspicion that it, for example, that's obviously a very low bar, that it could be somewhere in the area to be searched. [00:27:53] Speaker 04: So I see my time is up. [00:27:56] Speaker 04: I'd ask the court to affirm. [00:27:57] Speaker 04: Thank you. [00:27:57] Speaker 01: Thank you, counsel. [00:27:59] Speaker 01: Mr. Hansmeier? [00:28:06] Speaker 02: So the reasonable suspicion language and the language that you're quoting, Judge Ebell, that's a red herring in this case. [00:28:14] Speaker 02: I mean, that exists, and that is going to define the scope of the search that is authorized. [00:28:19] Speaker 02: The question in this case is, what [00:28:22] Speaker 02: What is the initial scope that is authorized by the facts of this case? [00:28:26] Speaker 02: So what I'm saying is that the judge's concern in the district court was with Rustin's electronic communications, full stop, just one communication, had nothing to do with the entirety of his computer or his electronic, the things stored on it. [00:28:41] Speaker 02: And so when you look at the statute, what the statute requires is that condition be tailored to the justification for the condition. [00:28:51] Speaker 02: So yes, there is these reasonable suspicion and the other things that narrow the scope of the search. [00:29:01] Speaker 02: But at the front end, the question is, what reasonable suspicion searches are authorized to begin with? [00:29:08] Speaker 02: And that's where we're at. [00:29:09] Speaker 02: I don't know if that makes sense, but essentially, [00:29:14] Speaker 02: The statute requires that condition to be narrowly tailored on the front end. [00:29:18] Speaker 02: I understand. [00:29:19] Speaker 00: It's just somehow the arguments kind of got morphed like a telephone rumor that gets passed through a bunch of people. [00:29:26] Speaker 00: All of a sudden, all of us were kind of on a maybe had gone a little bit further than your argument was advancing. [00:29:31] Speaker 00: I understand your other argument completely. [00:29:33] Speaker 02: OK. [00:29:34] Speaker 02: Yeah. [00:29:34] Speaker 02: So I mean, I'm not. [00:29:37] Speaker 02: I think we're all back on target. [00:29:39] Speaker 00: We understand that. [00:29:40] Speaker 00: You're saying that there's the one conversation about a receipt of a stolen car is not enough. [00:29:48] Speaker 00: at all to include a computer search. [00:29:51] Speaker 00: It doesn't show the computer was sufficiently embedded in anything that he did or any reason to be suspicious in the future. [00:29:59] Speaker 00: I understand that. [00:30:00] Speaker 01: But you're also suggesting that it could have been more narrowly tailored. [00:30:04] Speaker 01: Exactly. [00:30:05] Speaker 02: If you don't agree with me on D1, which I think you should, [00:30:09] Speaker 02: But if you don't, I mean, I think there are serious D2 problems here that the government can't get around just by pointing to the reasonable suspicion. [00:30:17] Speaker 00: Well, how would you narrowly tailor it? [00:30:19] Speaker 00: How would you propose that the court would say you lose on the narrowly tailored argument and this is the way it should be narrowly tailored? [00:30:26] Speaker 00: What could be done? [00:30:27] Speaker 02: So it would focus on electronic communications. [00:30:31] Speaker 02: So if there's reasonable suspicion, then the electronic communications can be searched. [00:30:40] Speaker 00: That's the narrow tear. [00:30:44] Speaker 00: pictures that he stored on their pornographic pictures, for example, that weren't intended to be communications with anybody. [00:30:50] Speaker 00: That wouldn't include any of that stuff. [00:30:53] Speaker 00: That's what he was doing. [00:30:53] Speaker 00: He wasn't communicating this or trying to sell it on the market or anything. [00:30:57] Speaker 02: So this isn't a child pornography case, by the way. [00:30:59] Speaker 02: This is just a bank robbery case. [00:31:00] Speaker 00: Oh, I'm sorry. [00:31:01] Speaker 00: I was thinking about the other case. [00:31:02] Speaker 00: You're right. [00:31:03] Speaker 00: You're right. [00:31:04] Speaker 02: This guy isn't a child pornographer. [00:31:06] Speaker 00: Yeah, you're right. [00:31:07] Speaker 02: Yeah, so it is. [00:31:09] Speaker 02: I lost my train of thought. [00:31:13] Speaker 00: I'm out of time. [00:31:14] Speaker 00: We're on the same page. [00:31:16] Speaker 00: It took both of us a little bit of a journey to get there, but we're there. [00:31:19] Speaker 02: Okay. [00:31:20] Speaker 02: Okay. [00:31:20] Speaker 00: Thank you. [00:31:21] Speaker 01: Thank you, counsel. [00:31:22] Speaker 01: Your arguments have been very helpful, and the case would be submitted if the counsel are excused.