[00:00:00] Speaker 03: The first will be United States versus Santiago, 246015. [00:00:03] Speaker 03: And we'll hear from the appellant. [00:00:09] Speaker 04: Good morning. [00:00:10] Speaker 04: Karen Tronjo on behalf of the appellant, Alexander Santiago. [00:00:13] Speaker 02: This federal case- I'm having trouble hearing you. [00:00:16] Speaker 04: Oh, excuse me. [00:00:17] Speaker 04: Is this better? [00:00:19] Speaker 04: This federal case began with a state warrant to search Mr. Santiago's iPhone. [00:00:30] Speaker 04: Everyone agrees the state warrant was overbroad in authorizing a search Mr. Santiago's phone for evidence of any crime committed at any time. [00:00:38] Speaker 04: Under the law of the circuit, officers can't rely in good faith on such general warrants, and especially not as in this case where the government has not offered evidence of any circumstances otherwise justifying the application of the good faith exception. [00:00:51] Speaker 04: The district court erred in holding otherwise. [00:00:54] Speaker 04: And once the evidence obtained from the illegal state search is taken out of the federal affidavit, that affidavit no longer supports probable cause to think that Mr. Santiago's iPhone would contain evidence of child pornography. [00:01:07] Speaker 04: This court should reject the government's argument that evidence of child sexual abuse alone can give rise to probable cause to search for child pornography, as has nearly every other circuit to address the question. [00:01:20] Speaker 04: Because both of these affidavits, excuse me, these warrants were invalid, the searches pursuant to those warrants were unconstitutional and the evidence needs to be suppressed. [00:01:29] Speaker 02: Did the federal agent have an obligation to [00:01:32] Speaker 02: evaluate the state warrant and affidavit. [00:01:38] Speaker 02: Because it had not been successfully challenged, could the federal agent simply refer to it as the federal agent did? [00:01:46] Speaker 04: Your Honor, I think yes. [00:01:47] Speaker 04: So under Lara, officers cannot rely in good faith on warrants from derivative searches. [00:01:56] Speaker 04: It's not the magistrate judge's obligation to ensure that the underlying warrant was complied with the Fourth Amendment. [00:02:03] Speaker 04: It's the officer's obligation. [00:02:05] Speaker 04: So yes, I think so. [00:02:06] Speaker 04: But the government hasn't argued that the good faith exception applies to the federal warrant. [00:02:12] Speaker 04: Turning to the state warrant, we argue that the state warrant was invalid for lack of particularity and the government appears to concede that point because it authorized a search of the iPhone for evidence of any crime at any time. [00:02:27] Speaker 04: We contend that the warrant's absolute facial deficiency alone is enough to [00:02:33] Speaker 04: to prevent the application of a good faith exception here. [00:02:36] Speaker 04: The government appears to concede as much. [00:02:38] Speaker 04: It did not address our analysis of Cassidy done or leery or grow, where we showed that this catch-all phrase is very similar to ones on which this court has said, render the state warrant over broad and make it so that officers can't rely on good faith on those warrants. [00:03:03] Speaker 04: But even under a totality of the circumstances, there's no good faith here because the government didn't offer any evidence of any circumstances that would otherwise justify applying the good faith exception here. [00:03:15] Speaker 04: So the affidavit itself doesn't narrow the scope of the search. [00:03:19] Speaker 04: It's the source of the overbroad language. [00:03:22] Speaker 04: And even if the affidavit narrowed, the government didn't provide any evidence that the officers who executed the state search of the phone relied on anything else as limiting the scope of the search further than the warrant went. [00:03:38] Speaker 04: Without this, the good faith exception can't apply to save the state search pursuant to the overbroad warrant. [00:03:46] Speaker 04: And this is the exact type of misconduct the exclusionary rule is meant to deter. [00:03:51] Speaker 04: So this offending catch-all phrase came directly from the affidavit. [00:03:56] Speaker 04: And the officer's unreasonable reliance on an overbroad warrant is itself Fourth Amendment misconduct. [00:04:02] Speaker 04: And that's this court's decision in theory and also under Leon. [00:04:09] Speaker 04: Turning to the federal warrant. [00:04:11] Speaker 04: Once you take the information from the illegal state search out of the affidavit, that affidavit only describes evidence of an illegal sexual relationship and does not mention anywhere else an association with child pornography in any way. [00:04:30] Speaker 04: and therefore can't give rise to probable cause to search the iPhone for child pornography. [00:04:36] Speaker 04: We think the decisions from nearly every other circuit to address this question are very clear, as is this court's decision in Edwards, that where there's no allegation of a connection between a crime like child sexual abuse and no data supporting a connection between that crime and the possession of child pornography, that alone cannot give rise to probable cause to search for child pornography. [00:04:59] Speaker 02: What about the photographs? [00:05:03] Speaker 04: Thank you, Your Honor. [00:05:04] Speaker 04: I think the photographs are evidence of the relationship, but they weren't alleged to be pornographic, and the descriptions do not meet the definition of child pornography in any way. [00:05:13] Speaker 04: And under this court's decision in Edwards, child erotica alone can't give rise to probable cause to search for child pornography, especially like this case where there's no allegation of a connection between those two people that might collect child erotica and people that collect child pornography or data to support it. [00:05:32] Speaker 02: There is some intimacy, though, in the photographs. [00:05:35] Speaker 02: And this is a 14-year-old girl. [00:05:37] Speaker 04: Yes, Your Honor. [00:05:39] Speaker 02: Does that distinguish the cases you're relying on? [00:05:41] Speaker 04: I don't think so. [00:05:43] Speaker 04: In Edwards, the suspect had expressed sexual interest in the minor depicted in the pictures. [00:05:52] Speaker 04: And they are even combined with those images that were relatively graphic. [00:05:57] Speaker 04: And even those two things combined didn't interact to create probable cause. [00:06:02] Speaker 02: The photographs are not in the record, are they? [00:06:05] Speaker 02: We didn't see them. [00:06:08] Speaker 04: Your Honor, I think they might be in the trial. [00:06:11] Speaker 04: They might have been introduced at trial, but not in the suppression record. [00:06:15] Speaker 02: It's a little ambiguous. [00:06:16] Speaker 02: It says in the bed. [00:06:19] Speaker 02: And I don't know if that means they're both [00:06:21] Speaker 02: on the bed, sitting. [00:06:23] Speaker 02: But certainly, there's no allegation that they're not fully clothed. [00:06:27] Speaker 04: No, there's no allegation they're not fully clothed. [00:06:29] Speaker 04: And there would need to be a description amounting to that under this court's decision in Lara. [00:06:33] Speaker 04: The magistrate judge needs to be able to review the description and say, yes, this meets the definition of child pornography. [00:06:39] Speaker 04: It can't just be an allegation that I sought child pornography. [00:06:46] Speaker 04: Let's see. [00:06:52] Speaker 04: I think those were the primary things I'd like to cover. [00:06:53] Speaker 04: The government makes an argument that we didn't preserve our challenge to the state search warrant below. [00:07:02] Speaker 04: We did preserve our challenge to the state search warrant. [00:07:05] Speaker 04: We argued below that the warrant was so facially deficient that officers couldn't reasonably rely on it. [00:07:11] Speaker 04: We argued that in our reply brief in support of our motion to suppress. [00:07:15] Speaker 04: and at the hearing, the hearing discussion centered around that question and we developed our argument there. [00:07:21] Speaker 04: That alone is sufficient to preserve the argument for this court's review. [00:07:25] Speaker 02: When you're talking about the state warrant being deficient for any crime and being a general warrant, I get that. [00:07:33] Speaker 02: And I think you said there's a case that tracks this one, which is we have a state warrant that is spatially invalid. [00:07:41] Speaker 02: And then the fruit from that warrant is recited in a later federal warrant. [00:07:47] Speaker 02: And the court holds the federal agent to the state warrant. [00:07:51] Speaker 02: And it is not allowed to use the evidence from what is later argued and found to be an illegal warrant. [00:08:00] Speaker 02: Is that right or are we on fresh ground here? [00:08:03] Speaker 04: I think the case that I would cite is Lara, but I do think that in Lara it was a state officer and possibly the same officer wrote the state affidavit and the second affidavit. [00:08:20] Speaker 04: But I think the reasoning of Lara is broad. [00:08:24] Speaker 04: And the holding is broad. [00:08:26] Speaker 04: Any search warrant that is based on a predicate, illegal predicate search, the good faith exception, doesn't apply. [00:08:33] Speaker 04: And that's because we hold the officer, the magistrate judge who's reviewing that second warrant, isn't getting information about [00:08:43] Speaker 04: whether that second warrant or the first warrant was obtained legally or illegally. [00:08:48] Speaker 04: So it's not the magistrate's error that then validates the second warrant. [00:08:53] Speaker 04: It's that the second warrant has information that was obtained from an illegal state search, excuse me, illegal predicate search that the magistrate judge reviewing the second warrant isn't able to assess because they don't have any information about the first state search. [00:09:08] Speaker 02: So Laura is the closest case? [00:09:10] Speaker 04: I think so, yes. [00:09:11] Speaker 04: I think so. [00:09:14] Speaker 04: If this court doesn't have any further questions, I'll revert the rest of the remainder of my time. [00:09:19] Speaker 03: Thank you. [00:09:32] Speaker 00: Thank you, Your Honor, and may it please the Court, D.H. [00:09:34] Speaker 00: Dilbeck for the United States. [00:09:37] Speaker 00: The District Court correctly denied the appellant's motion to suppress. [00:09:41] Speaker 00: This court should affirm, and there are at least three ways that it could do so. [00:09:46] Speaker 00: First, the appellant's current argument against applying the good faith exception was not preserved, and this court should decline now to entertain it. [00:09:55] Speaker 00: Second, even if that argument was preserved, the state search warrant wasn't so lacking in particularity that good faith exception shouldn't apply. [00:10:04] Speaker 00: And third, even if the argument was preserved, [00:10:07] Speaker 00: And even if the good faith exception shouldn't apply, the excised federal warrant still established probable cause to search Mr. Santiago's phone. [00:10:16] Speaker 02: On the second point, the state particularity, child porn wasn't part of that discussion. [00:10:24] Speaker 02: It was sexual assault, statutory rape, lewd behavior with the minor, right? [00:10:31] Speaker 02: Correct. [00:10:31] Speaker 02: And those charges went away? [00:10:33] Speaker 02: The state charges? [00:10:36] Speaker 02: Yes. [00:10:37] Speaker 00: They're currently pending still. [00:10:38] Speaker 02: Oh, they're still pending. [00:10:40] Speaker 02: All right. [00:10:40] Speaker 02: That's much later. [00:10:42] Speaker 00: Yes, Your Honor. [00:10:43] Speaker 02: Okay. [00:10:45] Speaker 02: Do you contend that the state warrant was valid? [00:10:50] Speaker 00: We concede that the warrant was facially overbroad, the first step of the inquiry here. [00:10:57] Speaker 00: What we continue to argue, though, is that if this Court is going to entertain the new argument that has been raised about why good faith should not apply, [00:11:06] Speaker 00: that this court can conclude if it wants to resolve the case on this ground, that it wasn't so lacking in particularity that no officer could reasonably rely upon it, given the warrant itself and the context of the search. [00:11:22] Speaker 03: So if there's a warrant that says that the police can search for, by cell phone, [00:11:32] Speaker 03: for any crime that Bob Baccarat may or may not have committed, that's okay under the Fourth Amendment? [00:11:42] Speaker 00: Is that what this affidavit in state court said? [00:11:46] Speaker 00: That's correct, Your Honor. [00:11:48] Speaker 00: There's no dispute about that. [00:11:49] Speaker 00: But I think Leon and this court's good faith exception cases on this issue in particular still inquire about not just the warrant itself, but the circumstance of the execution of the search. [00:12:03] Speaker 00: I don't think it's correct to say that simply the inquiry just ends on the face of the warrant itself without any kind of examination. [00:12:11] Speaker 03: So the affiant for the federal warrants relying on the state court warrant, the application for the state court warrant asks the state court judge to authorize a warrant to search for any crime that Mr. Santiago may have committed, and so the circumstances [00:12:33] Speaker 03: Those circumstances would let a law enforcement officer say reasonably that that is sufficiently particular. [00:12:43] Speaker 03: What about those circumstances are anything but the most obvious violation of a general warrant prohibition [00:12:56] Speaker 00: Well, I think the key question would be, and has been in prior similar cases, despite the facial invalidity of the warrant, would officers involved in the search, executing the search, have understand, despite the kind of catch-all language that you're referring to, [00:13:17] Speaker 00: the scope of inquiry for the search itself was more limited for certain kinds of evidence of certain kinds of crime. [00:13:22] Speaker 03: Are there any cases that say that? [00:13:24] Speaker 03: Because I thought that was the whole point of the prohibition against general warrants, is that you're supposed to circumscribe the discretion of law enforcement officers. [00:13:32] Speaker 03: You're not supposed to just say, okay, well, you know, Bob Baccarat may have committed computer fraud, [00:13:40] Speaker 03: not child production of child pornography. [00:13:43] Speaker 03: So you can look for the by cell phone for computer fraud. [00:13:48] Speaker 03: Are there cases that saving? [00:13:49] Speaker 00: I think I pointed several of these courts decisions on good faith exception, whether or not the warrant was so facially deficient in its lack of particularity that good faith couldn't apply cases like sons and others where [00:14:04] Speaker 00: For sites in particular, when the case is remanded on this issue specifically and the government puts on evidence, the court hears evidence about what the executing officers knew about the nature of the investigation, the scope of the search that eventually resulted from an otherwise overbroad warrant. [00:14:23] Speaker 00: Those are questions that go to whether officers, despite the facial invalidity of the warrant, reasonably relied upon it, knowing [00:14:32] Speaker 00: What, in practice, was the actual scope of the search and the investigation? [00:14:36] Speaker 03: Were the officers that executed the federal warrant the same officers that were the affiants for the state court warrant? [00:14:41] Speaker 00: No. [00:14:43] Speaker 03: OK. [00:14:44] Speaker 03: So how do you make this argument that they would have known? [00:14:50] Speaker 03: Well, if they weren't even the same officers that sought the unlawful warrant, how did those cases help? [00:15:02] Speaker 00: Well, the evidence that, the relevant evidence would be about the state officers who executed the original state warrant and whether those kinds of circumstances could go towards finding good faith despite the facially overbroadened nature of the state warrant. [00:15:21] Speaker 03: So we find good faith [00:15:25] Speaker 03: For the state court warrant, even though we really don't care about the state court warrant, the state court warrant wasn't executed. [00:15:31] Speaker 03: It was the federal warrant. [00:15:33] Speaker 03: So you're saying we would apply the good faith exception to the preceding state court warrant, even though that's not what we're here on. [00:15:44] Speaker 00: That's right, Your Honor. [00:15:45] Speaker 00: I think it's a little unusual, but I'm not aware of any reason why it wouldn't play out in that fashion, in effect. [00:15:52] Speaker 00: You'd find the underlying state warrant valid on that ground. [00:15:58] Speaker 02: Yeah. [00:15:58] Speaker 02: OK. [00:16:00] Speaker 02: Can I ask you about the timing at two Supreme Court cases? [00:16:05] Speaker 02: Leon comes along in 1984 at the Good Faith that you're arguing, and then we have Grover versus Ramirez [00:16:12] Speaker 02: 20 years later in 2004, with one of these deficient warrants. [00:16:18] Speaker 02: And it wasn't, I think the affidavit wasn't incorporated as here. [00:16:24] Speaker 02: And my recollection is that Gro doesn't talk about Leon. [00:16:28] Speaker 02: In other words, that Leon's not on the table for that situation. [00:16:32] Speaker 02: And I know that you have other cases, but I'm not sure they're on point with our situation in that regard. [00:16:39] Speaker 02: Can you speak to that? [00:16:40] Speaker 02: First, does Groh talk about Leon? [00:16:43] Speaker 02: And if not, why not? [00:16:45] Speaker 00: To the best of my recollection, I don't think that it does. [00:16:48] Speaker 00: I'm not entirely sure why. [00:16:50] Speaker 00: I think I take your point, which is that perhaps there are [00:16:55] Speaker 00: some warrants that just on their face are going to be so facially deficient that the circumstances don't matter. [00:17:01] Speaker 00: Like this one. [00:17:02] Speaker 00: And that may be the case, and I'm getting the impression that I might not be able to convince you otherwise. [00:17:08] Speaker 03: We're just asking questions. [00:17:10] Speaker 02: We're trying to figure stuff out. [00:17:11] Speaker 02: I'm light open. [00:17:12] Speaker 02: I'm looking for help. [00:17:13] Speaker 02: I'm not trying to get you in a corner, but I'm asking you, how can you make that argument if [00:17:19] Speaker 02: grow doesn't allow a Leon argument, then you're out of business on that part. [00:17:23] Speaker 02: Are you or are you not? [00:17:25] Speaker 00: I don't think so necessarily, at least following how this court has handled similar kinds of cases, even after both of those decisions by the Supreme Court. [00:17:34] Speaker 00: I think there is still, even for warrants like this one that have this kind of catch-all language, there still is an inquiry, as I've said, into the [00:17:44] Speaker 00: circumstances of the search itself to see whether there was a reasonable reliance on the part of the executed officers. [00:17:50] Speaker 02: I'm not saying we will, but if we were to review the law very carefully and determine that you can't make a Leon argument in a grow kind of a case, where are you? [00:18:01] Speaker 00: Well, then I think we're on this third potential ground for affirming that I've mentioned before, that if at that point you determine no reasonable reliance on the state warrant, [00:18:12] Speaker 00: Everything derived from the state search needs to go. [00:18:15] Speaker 00: I think that can very easily be excised from the federal warrant. [00:18:18] Speaker 00: I think we all agree on that, the two paragraphs. [00:18:21] Speaker 00: And then the question becomes is what's left enough to establish probable cause? [00:18:26] Speaker 00: And we'd argue that it is. [00:18:27] Speaker 02: And there you have the appellant citing a number of cases that seem to be on point as far as child exploitation not being enough to say probable cause. [00:18:38] Speaker 02: for child pornography. [00:18:40] Speaker 02: And in this case, particularly where the images are found by the mom, nothing to say that there's anything to do with child pornography if there's a surge. [00:18:50] Speaker 02: They're closed. [00:18:51] Speaker 02: There's no conveyed images that raise the concern. [00:18:56] Speaker 02: So why would we, are you asking for a per se rule that anytime there's a minor involved that there's probable cause for child porn? [00:19:04] Speaker 02: And if not, what extra do you have? [00:19:06] Speaker 00: No, we're not suggesting that the mere fact of evidence of child sexual exploitation, it's in and of itself on its own enough to justify a search for child pornography. [00:19:22] Speaker 00: But the facts of the case here and as set forth in the affidavit go [00:19:25] Speaker 00: beyond that. [00:19:27] Speaker 00: I think you can put them in one of two buckets, both on the nature of the relationship between Mr. Santiago and the minor and on the nature of the communications between them. [00:19:38] Speaker 00: So the affidavit recounts that Mr. Santiago had sexually assaulted the minor at his residence in his bed, that they had had sexual intercourse multiple times over the next several months, that the minor had taken at least three positive pregnancy tests, that he planned to take her into hiding with her out of state. [00:19:55] Speaker 00: There's allegations of physical abuse, some emotional abuse as well. [00:19:58] Speaker 00: And then we've got the communications via Snapchat as well that are referenced of the two of them lying in bed together. [00:20:06] Speaker 02: And no image. [00:20:07] Speaker 02: You haven't given us an image. [00:20:08] Speaker 02: And in bed could mean anything. [00:20:11] Speaker 02: I don't know what that means. [00:20:12] Speaker 02: And elsewhere, there's a different preposition, on furniture. [00:20:16] Speaker 02: And I don't know what that is, but you're asking a lot if you're asking us to just imagine the worst thing we can think of when you utter that prepositional phrase. [00:20:26] Speaker 00: Well, I think if you look at those pictures in and of themselves, the descriptions of the pictures themselves might not give rise to the worst cause for concerns, as you put it, but when viewed in the context of what has [00:20:45] Speaker 00: also recounted in the affidavit about this relationship, they do take on a different light. [00:20:50] Speaker 00: And this court's 2015 decision in Edwards has been mentioned already, which in some ways is maybe the most pertinent to this question. [00:20:57] Speaker 00: And there are a few things I want to say about it, because I think there are some ways where the facts of this case as recounted in the affidavit are different [00:21:05] Speaker 00: from Edwards in different and some potentially crucial ways. [00:21:09] Speaker 00: In Edwards, there was no evidence that the defendant was sexually abusing the minor that was in the photos. [00:21:16] Speaker 00: Here there is evidence of that. [00:21:17] Speaker 02: Well, what do you mean sexually abusing? [00:21:20] Speaker 02: Granted, she's 14 and there's no legal consent, but everything indicates that it's a consensual relationship in a non-legal sense, and that she's trying to run away with this guy, describes herself as in love. [00:21:35] Speaker 02: Well, it's not a child being molested. [00:21:38] Speaker 00: Respectfully, Your Honor, I would disagree. [00:21:40] Speaker 02: It's different than a 14-year-old whose stepfather is coming into the bedroom at 1 in the morning. [00:21:47] Speaker 00: Respectfully, Your Honor, I would disagree. [00:21:49] Speaker 00: I think the evidence in the record would suggest that it is an exploitative relationship. [00:21:53] Speaker 02: No question. [00:21:54] Speaker 02: She's 14. [00:21:56] Speaker 02: But they're not all the same. [00:21:59] Speaker 00: Well, that's fair. [00:22:01] Speaker 00: These cases run again. [00:22:04] Speaker 00: There is evidence in this case of direct physical sexual abuse of a minor that wasn't true for the defendant in Edwards. [00:22:10] Speaker 00: There's evidence here that the defendant was taking these images that are arguably amount to child erotica, given the circumstance. [00:22:19] Speaker 00: There's no evidence in Edwards that the defendant was actually taking the images that had been shared. [00:22:24] Speaker 02: I've missed something, then. [00:22:25] Speaker 02: What's the child erotica images? [00:22:27] Speaker 00: Well, Your Honor, respectfully, I think pictures of a 24-year-old [00:22:33] Speaker 00: affectionately embracing and kissing a fourteen-year-old who's known to have a sexual relationship with [00:22:39] Speaker 00: would amount to a kind of child erotica. [00:22:43] Speaker 03: But that's exactly what Judge McHugh said, and Edwards was not enough for probable cause. [00:22:47] Speaker 00: Well, no. [00:22:48] Speaker 00: But what I'm suggesting is, I think what separates this case from Edwards is that we know that the defendant here was taking those pictures. [00:22:55] Speaker 00: In Edwards, there wasn't a taking of the pictures. [00:22:57] Speaker 00: OK. [00:22:58] Speaker 03: The source of the child erotica. [00:23:00] Speaker 00: Source of the child erotica. [00:23:02] Speaker 00: All right. [00:23:03] Speaker 00: And we know that those pictures were shared via a phone-based social media app as well. [00:23:08] Speaker 00: The warrant is for a search of that phone. [00:23:11] Speaker 00: A final, I think a minor point, but actually an important one to make, a difference between Edwards. [00:23:20] Speaker 00: The court in Edwards emphasized the fact that those images of child erotica were shared publicly. [00:23:26] Speaker 00: There was no real hiding of them in that sense. [00:23:28] Speaker 00: They were publicly posted on a widely available message board, in effect. [00:23:35] Speaker 00: And the court emphasized that lack of secrecy, I think, in reaching its decision. [00:23:38] Speaker 00: The opposite is the case here. [00:23:39] Speaker 00: The images, call them child erotica of a kind, call them what you will, were not shared publicly. [00:23:45] Speaker 00: We know that the ones that the mother eventually acquired were shared [00:23:49] Speaker 00: via this social media app between the 14-year-old and Mr. Santiago. [00:23:53] Speaker 00: I don't mean to suggest that any one of those three things tips the scales necessarily, but cumulatively, I think they do make a difference in potentially concluding that all the evidence set forth in this excised federal affidavit would give rise to probable cause for a search of the phone. [00:24:10] Speaker 02: Did the federal agent have an obligation to examine the state warrant and see the obvious flaw? [00:24:20] Speaker 00: Your Honor, I'm not aware of any case that explicitly says, I suppose, that make an examination of the warrant, and it's incumbent on the officer to make a determination that this is so facially, I see my time's up. [00:24:36] Speaker 03: You go ahead and answer it. [00:24:37] Speaker 03: I'll let you answer it. [00:24:39] Speaker 00: And in effect, close down the investigation at that point, or at least [00:24:45] Speaker 00: not utilize any evidence acquired from the search. [00:24:48] Speaker 00: But to the extent that was a responsibility incumbent on the officer, I think it can be mitigated here by the fact, again, as I've mentioned, that the only evidence that came from that search that's in the federal warrant are those two paragraphs about the discovery of child pornography. [00:25:06] Speaker 00: Everything else doesn't derive from the search. [00:25:08] Speaker 02: That is the main punch. [00:25:11] Speaker 02: If there are images of child porn on the phone, obviously there's going to be public cause that there might be more on the phone. [00:25:17] Speaker 02: It's not just another category of things. [00:25:21] Speaker 02: It's the poison pill. [00:25:23] Speaker 02: It's what makes the case an easy one, if you're allowed to have that. [00:25:29] Speaker 02: Why do you not make a good faith argument on the federal warrant? [00:25:36] Speaker 00: Well, Your Honor, I think at this point we're in a position where [00:25:42] Speaker 00: record with what the district court did and where we are now i think that question on the federal warrant is is going to be just as a straightforward de novo review and we agree with the appellant that there's no need if the court wants to resolve it on that ground in particular decided here itself and not remanded to the district court for any kind of preliminary decision on that question so so the answer is because it couldn't succeed no your honor that we just [00:26:12] Speaker 00: Frankly, these are the arguments that were originally presented to the district court and the ones that we think have been preserved and can be made count. [00:26:22] Speaker 03: Did you have a question? [00:26:24] Speaker 03: Well, I know we're out of time, but we didn't give you a chance to talk about your first issue, which was preservation. [00:26:31] Speaker 03: So do you mind if I ask you a question about that? [00:26:33] Speaker 03: Please. [00:26:34] Speaker 03: So you fall the defendant, but of course, the defendant would have no need, I think you would agree, to address, to rebut a good faith defense unless you presented it, right? [00:26:48] Speaker 00: That's correct, Your Honor. [00:26:49] Speaker 00: It's the government's burden. [00:26:51] Speaker 03: Yeah. [00:26:52] Speaker 00: What I would say on that, though, is [00:26:54] Speaker 00: Leon and these decisions that have followed it don't suggest that the government has an affirmative burden to disprove every one of those four or five exceptions. [00:27:06] Speaker 00: I'm with you. [00:27:07] Speaker 00: I'm with you. [00:27:09] Speaker 03: But no question about that. [00:27:14] Speaker 03: But on page 69 in district court, as I understand it, all you argued for the good faith exception was that the state court warrant lacked [00:27:24] Speaker 03: indicia of probable cause. [00:27:27] Speaker 03: She's not arguing that. [00:27:29] Speaker 00: She's arguing overbreath. [00:27:30] Speaker 00: And our position is that in the district court, the defendant was arguing simply a lack of even an indicia of probable cause. [00:27:38] Speaker 03: In their response to the motion to suppress? [00:27:41] Speaker 00: And there are the two sentences in the motion to suppress that seem to raise the argument that's being presented now. [00:27:48] Speaker 00: Our position would be that [00:27:49] Speaker 00: at the very least that would amount to a kind of forfeiture. [00:27:53] Speaker 03: And I think... Well, you only have one sentence. [00:27:56] Speaker 03: And it's on a different issue. [00:27:59] Speaker 03: So it just seems odd. [00:28:01] Speaker 03: I don't mean to be pejorative. [00:28:03] Speaker 03: But you're saying, defendant, you should have... You only had two sentences on over-breath. [00:28:12] Speaker 03: Well, you don't have any. [00:28:14] Speaker 03: So I want to give you a chance to disabuse me of that. [00:28:17] Speaker 00: Well, Your Honor, it's our position that the only question that was before the district court on the good faith issue was whether good faith should not apply because the affidavit lacked even the barrested issue of probable cause. [00:28:32] Speaker 00: The government put on evidence to that effect. [00:28:35] Speaker 00: It's an issue that can be decided by the affidavit itself. [00:28:38] Speaker 00: And the district court, it's worth noting again, expressly said in its order, [00:28:44] Speaker 00: that the defendant has only raised one ground under Leon for why good faith should not apply, that the affidavit lacks even the barest indicia of probable cause. [00:28:52] Speaker 00: So in effect, what the appellant is asking this court now is to reverse on a theory that the district court never entertained, never found any facts relevant to either. [00:29:01] Speaker 03: OK. [00:29:02] Speaker 03: Thank you very much. [00:29:03] Speaker 03: Thank you. [00:29:17] Speaker 04: I just want to make, I guess, a couple of points. [00:29:20] Speaker 04: First, the government has conceded that the warrant was overbroad. [00:29:26] Speaker 04: This was undergrow and Cassidy facially deficient warrant that officers could not rely on in good faith. [00:29:32] Speaker 04: But the government has said this court should look to the totality of the circumstances to review whether there were other circumstances justifying the application of the good faith exception. [00:29:42] Speaker 04: This court, even if it looks at the circumstances, this case is very different from other ones where the court has applied good faith with an over-broad warrant. [00:29:54] Speaker 04: In those cases, the affidavit actually limited the scope of the search requested. [00:29:59] Speaker 04: The same officer who wrote the affidavit executed the search. [00:30:05] Speaker 04: Or he instructed the executing officers that the scope of the search was limited. [00:30:09] Speaker 04: They, in some of those cases, they actually asked an AUSA or a prosecutor to confirm that the warrant they got was, or that they were requesting was valid. [00:30:18] Speaker 04: And they actually then confined the scope of their search. [00:30:21] Speaker 04: We have none of that evidence because the government chose to stand on the affidavit. [00:30:26] Speaker 04: So under, in either circumstance, the good faith exception does not apply to the state search warrant. [00:30:32] Speaker 04: And then we have to then remove the evidence obtained from that illegal search [00:30:37] Speaker 04: from the affidavit to the federal warrant. [00:30:39] Speaker 04: And without that, those two paragraphs that are the only place where child pornography is discussed at all, without those two paragraphs, there is no probable cause to search this phone for evidence of child pornography. [00:30:51] Speaker 04: And the government's argument requires this court to accept that evidence of a sexual relationship and some pictures evidencing that relationship is sufficient to search a person's phone for child pornography. [00:31:03] Speaker 04: No other court has decided that in this way, and this court shouldn't do so. [00:31:07] Speaker 04: I think this court's decision in Evans is instructive. [00:31:11] Speaker 04: If that's going to be the case, there need to be allegations of a connection between people who [00:31:17] Speaker 04: engaged in child sexual abuse and then people who collect child pornography and supported with data. [00:31:22] Speaker 04: It's a factual question that's not left to the magistrate judge's discretion or just judgment. [00:31:29] Speaker 04: And then with respect to whether the good faith exception can save this federal warrant, the government has not argued that and that's because this court in Lara said, 10th Circuit precedent dictates that the good faith exception does not apply at all [00:31:43] Speaker 04: when a warrant affidavit is based on tainted evidence from a prior unlawful search. [00:31:48] Speaker 04: That's the case here. [00:31:49] Speaker 04: We have a warrant affidavit tainted from a prior unlawful search. [00:31:52] Speaker 04: Yes, it was state officers who [00:31:55] Speaker 04: conducted an unlawful search, and then a federal officer who wrote the second affidavit. [00:32:02] Speaker 04: But the court's reasoning in Lara is quite broad. [00:32:06] Speaker 04: It says, basically, because the magistrate judge can't be held accountable for assessing whether that predicate search was lawful or not, it's the officer who is accountable for what's in the affidavit. [00:32:19] Speaker 04: Because the magistrate judge isn't endorsing by granting the second warrant, [00:32:26] Speaker 04: The magistrate judge isn't endorsing the predicate search and its validity. [00:32:31] Speaker 04: It's the federal officer that's endorsing the predicate search and its validity. [00:32:34] Speaker 04: That's why the good faith exception doesn't apply. [00:32:36] Speaker 04: And the government hasn't argued that the good faith exception applies, and we contend it does not under this court's law. [00:32:43] Speaker 02: With that, I would... Would it matter if the federal agent had stapled the state affidavit and search warrant to the submission for a federal search warrant? [00:32:55] Speaker 04: I don't think so, Your Honor, because the reasoning in Lara, the officer who submitted the second affidavit, provided some information about that first search and explained how it was obtained. [00:33:10] Speaker 04: And the government there argued, well, we put that information to the second magistrate judge. [00:33:16] Speaker 04: And so the magistrate judge was endorsing that information. [00:33:18] Speaker 04: This court said, no, that information was not sufficient to allow the magistrate to determine the constitutionality. [00:33:24] Speaker 04: Maybe those circumstances were more on the cusp, so maybe if they had attached it and this was such a facially deficient warrant, maybe the magistrate judge could be held accountable. [00:33:33] Speaker 04: But here, there's no evidence that that information was ever submitted to the magistrate judge. [00:33:38] Speaker 04: They can't be held accountable for that mistake. [00:33:40] Speaker 04: Thank you. [00:33:42] Speaker 03: Thank you, counsel. [00:33:51] Speaker 03: This matter is submitted. [00:33:52] Speaker 03: I also want to thank both counsel for your excellent brace and your