[00:00:01] Speaker 01: Thank you, counsel. [00:00:02] Speaker 01: Thank you. [00:00:03] Speaker 01: May it please the court, Colin Fineman for John Holcomb. [00:00:06] Speaker 01: And I'd like to save five minutes for rebuttal, Your Honors. [00:00:11] Speaker 01: Your Honor, cases with ugly charges and difficult allegations about a client can make bad law. [00:00:18] Speaker 01: But there are two core issues in this case. [00:00:23] Speaker 01: Neither of them are novel. [00:00:25] Speaker 01: And the good faith exception, under any standard, does not apply to them. [00:00:31] Speaker 01: The first, of course, is the execution of the warrant itself. [00:00:35] Speaker 01: I don't think there's any reasonable dispute, nor does the government persuasively try to dispute the fact that the probable cause was substantially decreased after the warrant was issued in this case. [00:00:48] Speaker 01: And the facts really speak for themselves in this regard. [00:00:51] Speaker 01: Probable cause rested entirely, entirely on the complainant's allegations. [00:00:57] Speaker 01: She said one thing, the video showed another. [00:01:00] Speaker 01: By any measure, that is a situation in which the police are required to go back to the magistrate. [00:01:07] Speaker 01: to do otherwise is to essentially usurp the court magistrate judge's function in issuing warrants. [00:01:15] Speaker 04: But do we even need to reach that issue if we find that the warrant was so blatantly unconstitutional on its face that any reasonable officer would have known it was unconstitutional? [00:01:30] Speaker 01: You do not, Your Honor. [00:01:31] Speaker 01: I believe on either of these issues we should prevail, and I can address the second dominion clause provision first by saying there are two essentially fundamental Fourth Amendment violations involved here. [00:01:43] Speaker 01: The first is, of course, as you indicated, that construed as the government has wanted the court to construe it here. [00:01:50] Speaker 01: either with no time limitations or allowing the officers with no principled or practical limitations to search every file on a computer. [00:02:00] Speaker 01: That warrant is a general warrant. [00:02:02] Speaker 01: And the district court found that, and it did not change its findings when invited to revisit, and with all due respect to Judge Laznik, who I have tremendous respect for, did essentially issue a result-oriented reconsideration that's not grounded in this court's precedence. [00:02:19] Speaker 00: So one trouble I have is our cases where we have adopted or embraced the severance and where Gomez-Soto and U.S. [00:02:32] Speaker 00: v. Clark, Gomez-Soto, where there was, you know, multiple particularized provisions, seizure provisions, and one overbroad, and we said we should sever the overbroad one and then ask whether, you know, the items at issue were [00:02:49] Speaker 00: found pursuant to the lawful provisions. [00:02:51] Speaker 00: And then in US versus Clark, we similarly said, citing Gomez-Soto, that when there was one provision that was overbroad and other provisions that were sufficiently particularized, we would only suppress the items that were found pursuant to the overbroad position. [00:03:10] Speaker 00: So is there a reason why we shouldn't sever here? [00:03:14] Speaker 01: Your honor, I think under that approach, we would win directly and easily because there's certainly been no suggestion by the government that this video was found pursuant to another provision. [00:03:25] Speaker 00: I see their briefing as making that argument in the alternative. [00:03:31] Speaker 00: And my understanding from other cases like [00:03:38] Speaker 00: US versus Hill and US versus a Johnny, which I have a hard time distinguishing where there was a seizure of electronic equipment like a computer and [00:03:53] Speaker 00: we and a particularized seizure provision and we said in those cases that you know the police could search the entire computer they could in one of the cases anything we said they could open every file to see whether they matched the particularized seizure provisions so under that I'm not sure that there isn't any [00:04:21] Speaker 00: factual question about whether the videos were lawfully seized pursuant to the more particularized provisions. [00:04:30] Speaker 01: Your Honor, the whole line of cases I think you're talking about, Hill, Cow, Ajani, all of them, all came with the warning that the search of a computer, authorization to search a computer, should never be turned into an authorization to generally rummage through a computer. [00:04:44] Speaker 01: In each of those cases, there was a very fact-based analysis, first of all, [00:04:47] Speaker 01: that probable cause had been established to search for the evidence at issue. [00:04:52] Speaker 01: Remember, the dominion clause provision here is bare bones. [00:04:55] Speaker 01: There are no facts whatsoever in that Warren affidavit supporting a dominion clause provision. [00:05:03] Speaker 01: And if it's not surprising, consider, as the district court said, dominion clause, dominion control, excuse me, was never an issue in this case, nor would it have been. [00:05:11] Speaker 01: So, there is a fact-specific issue in terms of those prior cases, in terms of probable cause being established for searching an entire computer. [00:05:19] Speaker 03: Did any of those cases, and I should recall this, but I don't, did any of those cases involve the difference in timing? [00:05:28] Speaker 03: In other words, the valid portions of this warrant allowed a search for items from January 2020 forward in time. [00:05:39] Speaker 03: And the material that's at issue here was from 2016. [00:05:44] Speaker 03: So were any of the other cases that permitted severance or severability similar in that respect? [00:05:57] Speaker 01: No, Your Honor. [00:05:58] Speaker 01: And the alternative theory that we could approach in terms of construing this warrant is that it was in fact date limited, consisting in ways that these other warrants have come up. [00:06:05] Speaker 01: So, for example, when the police were doing the cell phone search, right, they understood that all of the provisions in that warrant [00:06:13] Speaker 01: fell within the time period that you just referenced, which would put, of course, the evidence at issue here well outside what was authorized. [00:06:20] Speaker 03: About four years outside. [00:06:21] Speaker 01: About four years outside. [00:06:23] Speaker 01: So one of the alternatives here is to simply follow the Supreme Court's mandate that a warrant application and the warrant itself should be construed under the totality of circumstances in a reasonable manner. [00:06:34] Speaker 01: One way to do that would be say that that Dominion Clause provision needs to be read in conjunction with every other provision that precedes it. [00:06:41] Speaker 03: Why was it even relevant? [00:06:44] Speaker 03: Because the search here was not for contraband itself. [00:06:50] Speaker 03: It was for evidence of an in-person encounter. [00:06:54] Speaker 03: So why would it matter whose computer it is or who took videos or any of that with an adult-to-adult [00:07:04] Speaker 01: encounter your honor you're correct the video showed what it showed and i would also add one other layer to this that beyond the fact that the government has made far-fetched speculations none of which appear in the war an affidavit in terms of why other dominion and control evidence or videos might be relevant [00:07:22] Speaker 01: What the offices were doing here was both impossible and irrelevant. [00:07:26] Speaker 01: In order to establish access to the computer, for example, the notion that somehow the video of the encounter itself was planted on the computer, you would not be able to... Well, what difference would that even make? [00:07:37] Speaker 01: It would not make a difference. [00:07:41] Speaker 03: That's why I say it's evidence of something that happened in the real world. [00:07:45] Speaker 03: It's not contraband to have it on your computer. [00:07:49] Speaker 04: And even if there was evidence of tampering, which there is not as near as I can tell, but even if there was, they could always go back and then get a proper warrant because of that, which rather than just having a general search warrant as they had here. [00:08:07] Speaker 01: Correct, Your Honor, which brings us full circle to the back that they cut the magistrate judge out of the process when this video emerged. [00:08:14] Speaker 01: And it doesn't need to be exculpatory. [00:08:16] Speaker 01: It doesn't need to be an exoneration. [00:08:17] Speaker 01: The standard that this court has indicated is that you simply look as whether it casts doubt upon the original probable cause of termination. [00:08:27] Speaker 03: Well, do you have to win that argument to prevail? [00:08:30] Speaker 03: I do not. [00:08:30] Speaker 03: OK. [00:08:31] Speaker 01: I throw it in as a bonus point, Your Honor, if the court would like to consider that. [00:08:36] Speaker 01: But no, we do not want to win to that argument to prevail. [00:08:40] Speaker 04: And what do you think is meant by the word dominion? [00:08:47] Speaker 01: Well, Your Honor, I think it's an inherently vague term that post-CDT the court has not really grappled with this type of provision. [00:08:55] Speaker 04: I couldn't find any Ninth Circuit case defining dominion. [00:09:00] Speaker 04: It seems like it's a term from my own recollection of my property course in law school, which I try to repress, but I can't. [00:09:14] Speaker 04: It's a term from property law, which [00:09:16] Speaker 04: I doubt very much that any reasonable police officer would have the slightest knowledge of. [00:09:23] Speaker 01: It's an archaic and vague term that, if applied the way the government suggests here, would swallow not only every other provision in the warrant, but turn any other warrant for data search at a minimum into a general warrant. [00:09:34] Speaker 00: What am I supposed to make of the fact that when the officer who found the videos at issue [00:09:44] Speaker 00: Including the ones that they just looked at the thumbnail they stopped and obtained another warrant I mean if if they thought that they were searching pursuant to a the broad Dominion and control clause that had no time limitation authorized them to search as far for anything that they wanted [00:10:04] Speaker 00: and to seize anything they wanted that could show dominion and control. [00:10:07] Speaker 00: If they thought that that was authorized under that provision, why would they have stopped to get another warrant? [00:10:13] Speaker 01: Well, they would have, the only way they could have thought that was that they were effectively given a general warrant, which is inherently unreasonable. [00:10:21] Speaker 01: And one of the reasons among many that the good faith exception does not apply. [00:10:25] Speaker 00: I mean, it seems to imply that they didn't think they had a general warrant. [00:10:30] Speaker 01: Well, Your Honor, what happened was that they continued to search until they found evidence of another crime. [00:10:34] Speaker 01: All right. [00:10:35] Speaker 01: And I think at that point, having found outside the bounds of the warrant and disregarding what would be a common sense interpretation of the dominion control provision within date limitations, [00:10:45] Speaker 01: They then wanted to preserve this evidence of new crime. [00:10:48] Speaker 01: And this is a typical, I have to say, not unusual, let's say, CYA approach to employing a magistrate to give an after the fact and perimeter to what you've already found to try and preserve exactly as they did in this case, an unconstitutional search. [00:11:05] Speaker 01: And I don't think that coverage withstands scrutiny, especially when compared with the execution of the Warren issue, where if they were so keen on getting a magistrate's approval for continuing a search under any circumstance, then they should have gone back as soon as they found the very video in question, which showed explicitly what it showed and undercut the sole evidence for PC, which was JJ's allegations. [00:11:32] Speaker 01: and gotten a warrant at that point. [00:11:34] Speaker 01: It is not difficult to get another warrant. [00:11:37] Speaker 01: It is the essential role of a magistrate to review that new evidence or to authorize the search for additional crimes if there is probable cause to support it. [00:11:48] Speaker 01: And this work around here not only would create a essentially boilerplate provision that could be asserted in any warrant to allow the police unfettered discretion, [00:12:01] Speaker 01: to search for data. [00:12:02] Speaker 01: It would also essentially cut the magistrate judge out of any review of new information or evidence that changes the probable cause calculus. [00:12:11] Speaker 01: And I just think those risks in terms of going back to ultimately the Leon analysis of the social costs involved in approving that, when the government has offered no principled limitations or alternative to interpretations that would allow some limiting principle in situations like that, would be too extreme. [00:12:30] Speaker 00: I think the difficulty going back to Leon for me, speaking for myself, is that the court [00:12:37] Speaker 00: simultaneously agreeing that there might be some situations in which a warrant is so facially over broad that, you know, even the master judges or judges, you know, stamp of approval isn't enough to, um, establish that the good faith exception applies, but at the same time in monitoring that this is generally speaking, when there is a warrant, um, the good faith exception implies and the circumstances under which we would find [00:13:05] Speaker 00: that doesn't apply and suppress should be very rare. [00:13:09] Speaker 01: Well, first of all, Your Honor, of course, that whole Leon analysis simply does not apply to the first issue, the execution, the warrant, because a good case exception simply does not apply there at all. [00:13:18] Speaker 01: But secondly, [00:13:19] Speaker 01: You know, I would take, you know, really the district court's findings here, which is that under no circumstances can the police look at that warrant and think that it gives them an unlimited, date unlimited authorization to look at every file. [00:13:38] Speaker 01: And the proof of that is what they did with the cell phone. [00:13:41] Speaker 01: The cell phone was searched [00:13:42] Speaker 01: solely according to the time limitations that appeared elsewhere in the warrant. [00:13:47] Speaker 01: And we had the officer who was involved in the computer search. [00:13:51] Speaker 01: I mean, we have it from the prosecutor, the state prosecutor himself, that his practice, okay, despite the fact that what the warrants have said or the forensic tools available [00:14:02] Speaker 01: or what the metadata would show with even the most rudimentary investigatory tools, sits down and simply rummages through files. [00:14:11] Speaker 01: Now, if this isn't the type of police conduct that merits disapproval from a court with the extreme privacy implications that have arisen here when they were looking at videos involving sex between Mr. Holcomb and his wife, it's hard to imagine a situation with a more stark contrast between the police [00:14:31] Speaker 01: exercising unfettered discretion and the privacy issues at stake. [00:14:36] Speaker 04: If I understand your argument, it is in part that although you think the good faith exception is not applicable here, even assuming arguendo is applicable, it did not defend what was done and was not a basis on which the search could have been done in the way it was done. [00:15:00] Speaker 04: Do I have that right? [00:15:01] Speaker 01: You do, Your Honor. [00:15:01] Speaker 01: And I would make one additional point that we made in our brief, too, is that going back to the affidavit, regardless of what the police interpreted subjectively about the scope of the Dominion to Control authorization, it is simply a fact, not subject to any trying to construe what the officers were thinking. [00:15:22] Speaker 01: When there is a bare bone application, the good faith exception simply does not apply. [00:15:28] Speaker 01: And that is really the challenge for the government, even setting aside all the police contact. [00:15:33] Speaker 01: That affidavit contained nothing whatsoever, not even speculation, not even boilerplate conclusions, to support a dominion and control provision. [00:15:42] Speaker 00: Counsel, I think you're over your time, and I know you wanted to reserve five minutes. [00:15:46] Speaker 00: I'll give you three on rebuttal. [00:15:49] Speaker 01: Thank you, Your Honor. [00:16:03] Speaker 02: Good morning and may it please the court. [00:16:05] Speaker 02: I'm Matt Hampton on behalf of the government. [00:16:08] Speaker 02: For three reasons this court should affirm. [00:16:11] Speaker 02: First, the Raquel May warrant was reasonable. [00:16:15] Speaker 02: It was supported by probable cause, including its dominion and control search authorization. [00:16:20] Speaker 03: How is that possibly relevant here? [00:16:23] Speaker 03: The search here was not for an item that would be contraband, such as child pornography, where it matters whose computer it is or whose phone it is. [00:16:36] Speaker 03: It's looking for evidence of an encounter between two adults, one of whom says something bad happened, the other of whom says no. [00:16:45] Speaker 03: What difference does it make whose it is or who took it? [00:16:51] Speaker 03: I don't understand even the plausible relevance of that. [00:16:56] Speaker 02: So I have two responses, first at a general level and then more specific to this case. [00:17:00] Speaker 02: Generally, there is no separate probable cause requirement for dominion of control. [00:17:05] Speaker 02: And we know that from United States Vidalia, where the Supreme Court identified the three requirements for a valid warrant, one of which is that there is probable cause to believe that the requested evidence [00:17:18] Speaker 02: will aid in a particular apprehension or in the conviction of a particular offense. [00:17:24] Speaker 02: And here, dominion and control evidence would absolutely have aided in the conviction for a particular offense in two critical ways. [00:17:32] Speaker 02: One, the warrant application made clear that there was likely to be evidence of a rape on Mr. Holcomb's digital devices, including [00:17:45] Speaker 02: Photos or videos that he took of the victim without her consent and then used to manipulate or belittle her. [00:17:52] Speaker 02: Video evidence possibly capturing the assault itself. [00:17:57] Speaker 03: Again, why does it matter whose device it is if it shows that or doesn't show that? [00:18:03] Speaker 02: For two reasons, Your Honor. [00:18:05] Speaker 02: If, in fact, that evidence were recovered, its reliability could certainly be questioned at a trial. [00:18:11] Speaker 02: But even more important here, the defendant, shortly after the police left, and this is included in the warrant as described by the detective with messages that he saw on the defendant's computer, told his wife he, quote, handled that shit. [00:18:28] Speaker 02: He had hours of access to all of his devices after the police left at that initial encounter and before there was a warrant. [00:18:36] Speaker 03: How does any of this, assuming that you're correct about this type of provision in general, how does the untimely limited nature of it [00:18:50] Speaker 03: play into it. [00:18:52] Speaker 03: Everything else about the warrant is limited to January 2020 and forward. [00:18:58] Speaker 03: There is no allegation that anything happened to this alleged victim in 2016, and that's where this material was found. [00:19:10] Speaker 03: I don't understand how that's possible. [00:19:13] Speaker 03: Or how anyone in good faith could think that when the incident in question happens in 2020, they can look at what happened in 2016. [00:19:25] Speaker 02: Well, I think it's because the relevance for purposes of dominion and control is not temporarily limited in the way the defendant would certainly argue. [00:19:35] Speaker 02: So his focus is on the videos in question here. [00:19:38] Speaker 03: But how could that possibly be relevant? [00:19:40] Speaker 03: Let's say he had dominion and control in 2016, but he doesn't in 2020, or vice versa. [00:19:45] Speaker 03: What matters is when this incident occurred. [00:19:48] Speaker 03: What difference does ancient history make? [00:19:51] Speaker 02: Well, Your Honor, what matters is that those videos were present on the device at the time. [00:19:55] Speaker 02: The fact that a video was created at any given time showing the defendant raping a child, it's continued. [00:20:02] Speaker 03: Whoa, whoa, whoa. [00:20:03] Speaker 03: That wasn't the thing that was being investigated. [00:20:07] Speaker 02: No, I understand that, but what I am saying is its presence on the device itself is current evidence. [00:20:13] Speaker 03: Well, I know that, but they shouldn't have been looking at it. [00:20:16] Speaker 03: It appears to me that's the problem. [00:20:18] Speaker 04: You're making, if I understand your argument, a circular argument. [00:20:21] Speaker 04: The question is, since the incident that was being investigated was one that occurred in 2020, and the most you could go back under the other provisions was June 1, 2019, [00:20:36] Speaker 04: So how is dominion and control in 2016 remotely relevant to anything that there was probable cause for? [00:20:52] Speaker 02: Well, I have two responses. [00:20:53] Speaker 02: If you take the particular video in question, videos in question here, assuming they were committed at producing. [00:20:59] Speaker 04: No, no, no, but how do you even, that's why I say your argument is circular. [00:21:03] Speaker 04: I want an answer, forgive me, to my question. [00:21:09] Speaker 04: How, if you only have probable cause to look into evidence of things that occurred at best June 1st, 2019 forward, and even that is pushing it. [00:21:26] Speaker 04: How can you even under Dominion and Control or any other basis look at stuff that on its face is labeled 2016? [00:21:40] Speaker 02: Because, Your Honor, its presence on the computer in that moment is current evidence of dominion and control, in the same way that a selfie taken a year ago but stored on a phone is evidence of current ownership or use of that phone at the time it is recovered. [00:21:56] Speaker 02: The point here is that the temporal limitation that is advocated by Mr. Holcomb is really about creation. [00:22:04] Speaker 02: And that may make sense in certain contexts. [00:22:06] Speaker 02: But that doesn't make sense in the context of dominion and control where we have... Sure it does. [00:22:11] Speaker 03: Suppose he got the phone from someone else in 2019 or 2018. [00:22:15] Speaker 03: What difference does it make? [00:22:17] Speaker 03: Who had it in 2016 when the question is a modern alleged crime? [00:22:25] Speaker 03: I mean, what you're really arguing for is the ability to have no time limits whenever you're looking at computers, which is an astonishing proposition to me, at least. [00:22:38] Speaker 02: Well, Your Honor, what I'm arguing is that that evidence itself [00:22:43] Speaker 02: whenever it was created was in fact evidence of dominion and control over that device from the time it was created. [00:22:50] Speaker 03: But the thing that you're investigating is something that happened much later than 2016. [00:22:55] Speaker 03: So let's suppose the person had never seen the phone or the computer in 2016. [00:23:02] Speaker 03: What difference could that possibly make to anything related to the crime under investigation or the alleged crime under investigation? [00:23:11] Speaker 02: The current storage of a video showing a target committing a serious criminal act, that it is present on the device, is evidence of ownership at the time of the crime here. [00:23:24] Speaker 04: The fact that it was there in- So if I understand your argument, they could go back 20 years looking for evidence of dominion and control because it would inferentially still bear on dominion and control in 2020. [00:23:39] Speaker 04: Is that your argument? [00:23:42] Speaker 02: It absolutely could inferentially bear, and depending on the context, it could bear... So there is no limit to what they can look at under this provision. [00:23:49] Speaker 04: It is a general warrant, and they can go back to any time and look at anything as long as it is in a search for dominion and control. [00:23:58] Speaker 04: That's what you're saying, yes? [00:24:01] Speaker 02: I am not saying it is a general warrant, but I am certainly saying yes, Your Honor, that dominion control... What's the difference between that and a general warrant? [00:24:08] Speaker 02: A general reward imposes no limits on what can be searched or what can be searched. [00:24:12] Speaker 02: And how do you define dominion, by the way? [00:24:15] Speaker 02: I think a helpful way to think about it might be user attribution, but certainly ownership, control, access. [00:24:24] Speaker 04: Well, we know it's something other than control because the language says dominion and control. [00:24:31] Speaker 04: So by definition, dominion is something else, right? [00:24:35] Speaker 04: We have to give some meaning to dominion other than control, or would it be an unnecessary word? [00:24:40] Speaker 02: Well, I think the best example, the best way to perhaps explain those terms is to look at the illustrative list that the judge included with the term. [00:24:49] Speaker 02: So evidence, items, artifacts, files, evidencing dominion and control. [00:24:55] Speaker 04: Given the breadth of those items, how do you distinguish it from a general warrant? [00:25:01] Speaker 02: Because a general warrant would permit the seizure of anything and everything without regard to whether there's any reasonable. [00:25:08] Speaker 04: Anything or everything would bear under your definition of dominion. [00:25:13] Speaker 00: What could they not seize from the computer under the dominion and control provision? [00:25:18] Speaker 02: Well, it is, of course, context dependent, Your Honor. [00:25:20] Speaker 02: I can certainly think of some things that would almost certainly categorically not be seizable. [00:25:24] Speaker 02: There are system files, things that would exist on almost any computer that are certainly not. [00:25:30] Speaker 00: Any file they couldn't open pursuant to that warrant? [00:25:35] Speaker 02: I think almost any file could be open to determine if it's responsive. [00:25:38] Speaker 02: And that actually brings me to this court's decision in Cheso, which I think is incredibly instructive here. [00:25:44] Speaker 02: Because what the defendant purports to have this court answer is, is dominion and control always reasonable, or is it never reasonable in the digital context? [00:25:52] Speaker 02: And Cheso says, that's not the question this court asked. [00:25:54] Speaker 02: This court must ask, is that provision reasonable here? [00:25:58] Speaker 03: Well, counsel, where the alleged incident is on the 26th of January 2020, if I recall correctly, that is, to me, the crucial fact. [00:26:10] Speaker 03: And that is what the probable cause is about. [00:26:12] Speaker 03: It's not about what happened in 2016. [00:26:16] Speaker 03: So we don't have to say that dominion and control evidence is never relevant. [00:26:22] Speaker 03: But all the other provisions had a time limit. [00:26:27] Speaker 03: And that seems to me that that has to be true of dominion and control. [00:26:35] Speaker 03: And if there isn't enough and there's probable cause for more, if you don't figure out dominion and control in the present time period, why couldn't you just go back to the magistrate and say, we need permission to look further back because of A, B, and C? [00:26:55] Speaker 02: Well, a couple of responses. [00:26:57] Speaker 02: First, I disagree with your premise as to the time issue. [00:27:03] Speaker 02: I think it's important to understand that this- Which part of it? [00:27:05] Speaker 03: That that's when the incident that gave rise to probable cause occurred? [00:27:09] Speaker 02: No, that this evidence in question is not in fact from that time period. [00:27:15] Speaker 03: So even assuming the warrant had been drafted- Excuse me, I thought the thing in question occurred in 2016. [00:27:21] Speaker 03: Am I wrong about that? [00:27:22] Speaker 02: No, Your Honor, but my point is that the fact that it is present on the device. [00:27:26] Speaker 02: is evidence of dominion of control at the time it's on the device, not only when it was there from the beginning through to the point of seizure of the device. [00:27:34] Speaker 02: What I mean is if you have, for example, and I draw it to the physical context and that analogy, if the police find stolen diamonds in a bedroom, they may find a newspaper or they may find a piece of mail postmarked the day before to the owner of the home. [00:27:54] Speaker 02: They might also find [00:27:57] Speaker 02: love letters from many, many years earlier addressed to the same person that show the same dates. [00:28:03] Speaker 02: Those could be equally relevant of who owns it and who is controlling the premises where those diamonds were found. [00:28:08] Speaker 03: But that presupposes that the warrant is appropriately limited in the first place. [00:28:14] Speaker 03: Because in your example, the physical example, there's probable cause to look in the bedroom. [00:28:20] Speaker 03: And it's in plain view in the bedroom. [00:28:22] Speaker 03: So the question really here is, [00:28:25] Speaker 03: Is the warrant properly limited to begin with? [00:28:29] Speaker 03: It's like saying in your example, you can look in the bedroom and also in the barn and also in the cars, even if they're not listed in the warrant, because maybe you'd find some letters there that would tell you who owns the premises. [00:28:45] Speaker 03: It still has to be properly limited to begin with, doesn't it? [00:28:48] Speaker 02: Well, certainly, Your Honor. [00:28:49] Speaker 02: But again, the provision at issue there would be evidence of dominion and control. [00:28:53] Speaker 02: And in fact, this court in the United States v. Shea, while it did not use the words dominion and control, approved of a very similar and broad, untimely limited search provision that often- Yeah, so you're almost out of time. [00:29:05] Speaker 00: So I would like to give you some time to address what if we assume that the dominion control provision is unconstitutionally overbroad, then what? [00:29:16] Speaker 02: I have two responses, one related to good faith and one sort of an alternative argument that we have made. [00:29:22] Speaker 02: First, I think as evidenced by Judge Laznik's struggle with the issue, this is a challenging issue. [00:29:29] Speaker 02: And the court's precedents did not make clear to officers [00:29:33] Speaker 02: that a non-time-limited dominion and control provision was invalid. [00:29:36] Speaker 02: And that's shown, I think, both in Chesso, where the court was very clear that when evidence cannot be limited to a file or a set of files, a particular set of data, then the Fourth Amendment has no quarrel with the search of an entire device. [00:29:51] Speaker 02: And here, that is absolutely true about dominion and control. [00:29:54] Speaker 02: And there was no way to reasonably limit it to particular files or, again, even if it had limited it to [00:30:01] Speaker 02: the time of the offense itself, the evidence in question here would have been seized as evidence pertinent to use at the time of the offense. [00:30:09] Speaker 02: Secondly, though, a separate provision authorized the police to see certain surveillance video. [00:30:16] Speaker 02: That provision necessarily would have required the police to view, at least in a cursory manner, every video file on the device to decide whether it was potentially responsive to the warrant or not. [00:30:29] Speaker 02: And in that scenario, that means the combination of that provision and the plain view doctrine mean. [00:30:35] Speaker 02: I'm sorry, I'm having trouble with your second. [00:30:37] Speaker 02: Which provision are you talking about? [00:30:39] Speaker 02: I'm confused. [00:30:39] Speaker 00: There was a, I don't remember the precise number, but there was a. The date limited provision that says you may search for videos of X, or you may seize. [00:30:47] Speaker 00: Yes, you may seize. [00:30:48] Speaker 00: Because it says you may search the computer and then without limitation, is my understanding. [00:30:53] Speaker 00: And then it says you may seize certain files. [00:30:56] Speaker 00: Correct. [00:30:57] Speaker 02: All of the categories of the Dominion Control were written in that way. [00:31:00] Speaker 02: There was one specifically that authorized the seizure of certain surveillance video from a specific time period. [00:31:07] Speaker 04: No, maybe I have this wrong. [00:31:10] Speaker 04: But I think there were five listed categories. [00:31:15] Speaker 04: Correct. [00:31:15] Speaker 04: And each of them had a time limitation except the Dominion Control. [00:31:20] Speaker 02: Yes, Your Honor. [00:31:20] Speaker 02: And one of the four that were not Dominion Control, one of those [00:31:25] Speaker 02: Authorized the seizure of surveillance video. [00:31:28] Speaker 02: I believe it was written a surveillance video depicting John Holcomb or JJ or any other surveillance lit video and then it from January 26 2020 to current So how does that give you a right to look at something from 2016? [00:31:43] Speaker 04: I [00:31:44] Speaker 02: Well, Your Honor, because that, as this court has recognized in Hill, the police do not have to simply assume the character of the data that presents itself. [00:31:53] Speaker 02: Data can be tampered with. [00:31:55] Speaker 02: What evidence is there? [00:31:56] Speaker 04: Was there any evidence presented to the magistrate or anyone else of tampering in this case? [00:32:01] Speaker 02: Well, Your Honor, there was certainly concern for that given the defendant told his wife that he, quote, handled that shit. [00:32:08] Speaker 04: In the presentation to the magistrate, [00:32:11] Speaker 04: Was there anything about, Judge, because of that comment, we think there's a possibility of tampering here? [00:32:18] Speaker 02: Well, Your Honor, I don't think that has to be a formal statement. [00:32:21] Speaker 02: I think the answer to my question is there was nothing, right? [00:32:23] Speaker 03: I have a similar question, which is, was there any evidence presented that it is plausible to think that a file can be redated [00:32:35] Speaker 03: That's a technical question, and I'm not a techie, but it is not obvious without some evidence, it seems to me, that would say, and this means, magistrate, that something dated 2016 could actually be something from 2020. [00:32:53] Speaker 03: Was there anything like that presented to the magistrate? [00:32:57] Speaker 02: There was no specific words that said that, Your Honor, but the amicus in support of the plaintiff here note or the appellant here noted, it is in fact entirely possible for someone. [00:33:08] Speaker 03: Well, it may be possible. [00:33:10] Speaker 03: A lot of things are possible, but they don't give you the right to obtain a warrant unless there's evidence of those possibilities given to the magistrate, correct? [00:33:20] Speaker 02: Well, certainly, but the warrant requirement does not require the police to lay out in detail or say every single thing that could be true. [00:33:28] Speaker 02: It's a common sense. [00:33:30] Speaker 02: application. [00:33:31] Speaker 03: There's nothing common sense to me and maybe it's just me saying that something that is videotaped in 2020 will be labeled 2016 on someone's computer unless there's evidence that that is something that is either possible or commonly done or in this instance we suspect it because it is otherwise what is the point of the date [00:34:00] Speaker 02: Well, Your Honor, again, I note that the judge in this case was presented with clear evidence that at least the defendant said that he had handled the issue. [00:34:11] Speaker 02: And I think that can certainly give rise to an inference, given the defendant had unfettered access for hours, plainly the motivation. [00:34:20] Speaker 03: But that still doesn't say whether this, in fact, is something that can be done, or whether he had the knowledge to do it, if it is possible to do it. [00:34:29] Speaker 03: That's a blank. [00:34:33] Speaker 03: It's all speculation. [00:34:36] Speaker 02: Well, I don't disagree that the language is not there directly on point there. [00:34:43] Speaker 02: And it may well have been helpful had that been there. [00:34:45] Speaker 02: But I think, again, he had the motivation and the need. [00:34:51] Speaker 02: And he certainly was not technically unsophisticated. [00:34:54] Speaker 02: What was presented to the judge was someone who was using encrypted messaging, who [00:34:58] Speaker 02: advised the victim about the nature of her communications not being particularly safe and that she used different programs. [00:35:06] Speaker 02: And that's certainly not the same as a level of greater sophistication. [00:35:10] Speaker 02: But it's at least indicative of someone who is familiar with these issues and fundamentally had made a statement suggesting that he either could have tampered with or even just deleted. [00:35:21] Speaker 00: Do we? [00:35:23] Speaker 00: I mean, again, I've tried to understand what happened in cases like Hill versus Adjani, where we seem to, on the rationale, say, because we don't have, you know, officers don't have to trust the labels that people put on things. [00:35:40] Speaker 00: They can open any file to see whether it matches the thing for which they've been authorized to seize. [00:35:46] Speaker 00: And I tried to see whether there was [00:35:51] Speaker 00: any requirement in the warrant that there be [00:35:56] Speaker 00: specific evidence of tampering in order to authorize that kind of broad search of the electronic equipment for particular files. [00:36:08] Speaker 00: As far as I can tell, there wasn't. [00:36:10] Speaker 00: The court just said because this is possible, they were allowed to open everything to see it. [00:36:17] Speaker 00: I also find some tension between that reasoning and the idea that you can't [00:36:23] Speaker 00: We shouldn't be issuing general warrants, but do you know what the circumstances were in those cases? [00:36:30] Speaker 02: I don't, Your Honor, but I do think those cases are instructive because they make the point that these are real possibilities in the world and that the police [00:36:38] Speaker 02: have a job to do, and I would note again, I think it's important to understand when we say General Warren. [00:36:44] Speaker 04: Just so I understand your argument, once again, you're saying that if there is even the possibility of tampering, then you can search any time period back decades. [00:37:02] Speaker 04: to search for dominion and control evidence because of the possibility of tampering. [00:37:09] Speaker 04: That's your position, yes? [00:37:10] Speaker 02: Your Honor, I believe that is appropriate and there are good reasons why that would be acceptable. [00:37:17] Speaker 00: Yeah, if I understood your argument correctly, you're saying even if you took out the dominion and control provision and they were just searching for the particular videos from 2016 or 2019, that they would have been allowed to search for files that were apparently dated outside of that time period? [00:37:37] Speaker 02: Video files. [00:37:38] Speaker 02: Video files. [00:37:39] Speaker 02: That they necessarily would have needed to examine all video files, at least in some cursory fashion. [00:37:46] Speaker 02: to decide whether they were potentially responsive, now whether that means that the data had been manipulated in some way. [00:37:52] Speaker 02: Here, that wasn't how it would have happened, because of course, for two of the videos that the defendant saw the thumbnails of, they were obviously child sexual abuse material, or at least obviously appeared to be. [00:38:05] Speaker 02: And he stopped the search, and the police applied for another warrant. [00:38:09] Speaker 02: But yes, that is certainly our alternative theory. [00:38:12] Speaker 02: as to if the court is concerned about domain and control, that separate provision of the warrant would have authorized exactly what happened here. [00:38:21] Speaker 02: And the last thing I'll just note is the police did not have to stop the search here. [00:38:26] Speaker 02: There was remaining probable cause. [00:38:28] Speaker 02: They did not find the video of the alleged rape. [00:38:31] Speaker 02: They found some video evidence and had good reason to think there could be additional video. [00:38:37] Speaker 02: not only what he took against the defendant's will, but also evidence that he might have deleted or altered the very evidence that they were hoping to find. [00:38:48] Speaker 02: I see my time is up and I would urge the court to affirm. [00:38:55] Speaker 01: I will be brief, and for most of these speculations and misstatements of the record, the facts of the record are really not in dispute, and I just want to make a few very, very brief points. [00:39:06] Speaker 01: First of all, when you're talking about Helena John, you're talking about cases very early in the digital revolution. [00:39:13] Speaker 01: And I respectfully refer the court to the ACLU brief and the amicus brief because, and the government does not dispute this, what they are saying they want you to endorse in terms of opening and looking at every file could not even possibly accomplish what they say is the purpose, speculative purpose, for doing it. [00:39:34] Speaker 01: The fact that a particular file has a date stamp or is on the computer tells you nothing about actually how it got there. [00:39:43] Speaker 01: or when it got there. [00:39:45] Speaker 01: You have to look with commonplace forensic tools that's undisputed these police officers had for such things as the program registries and other information, the email settings, logins on the computer to determine who had access to the computer, which is really the issue, not the meaning of control, who had access to the computer. [00:40:05] Speaker 01: It often may be multiple people during the relevant time period. [00:40:09] Speaker 01: So what the government is asking for is both uninformed and irrelevant, even to the speculative purposes that they're promoting to the court. [00:40:16] Speaker 01: And I want to go back really to what Judge Rakoff's question was at the outset of the government's argument, which is what is the principled limitation on this? [00:40:24] Speaker 01: If we were to endorse a bare-bones dominion and control provision that allows police to search back [00:40:32] Speaker 01: eons in time if the computer is 20 years old. [00:40:35] Speaker 01: And I respectfully refer the court to a recent ruling by the Michigan Supreme Court that's cited in the ACLU brief at 14. [00:40:43] Speaker 01: And they dealt with a very comparable issue in terms of overbreath, and they put it very simply. [00:40:49] Speaker 01: A rule that is always reasonable for officers to review the entirety of seized digital data based on the mere possibility that evidence may conceivably be found anywhere on the device or might be concealed, mislabeled or manipulated would effectively nullify the particularity requirement of the Fourth Amendment and give police officers unbridled discretion to rummage through data. [00:41:13] Speaker 01: We are at a point post-CDT, post-Reilly, where we are now much better informed about how these things work, both from a practical and forensic standpoint. [00:41:24] Speaker 01: And I respectfully submit to you, Your Honor, that is the primary distinction between Hill and those earliest cases. [00:41:30] Speaker 01: This has evolved. [00:41:31] Speaker 01: Times have changed. [00:41:32] Speaker 01: The times have changed. [00:41:33] Speaker 01: The forensic tools have changed. [00:41:35] Speaker 01: The court's information and knowledge about how these things work have changed, as just evidenced by the advocate's briefs and the points that were made by the government. [00:41:44] Speaker 01: The more recent case, Cheso, that was referenced. [00:41:47] Speaker 01: I actually argued that case, Your Honor, and both at the district court level and en banc. [00:41:52] Speaker 01: The issue there was simply a probable cause issue about whether or not there was probable cause to search a computer for contraband. [00:42:00] Speaker 01: The search was limited to contraband images based on a client accessing a mixed-use site, basically a site that contained both illicit child pornography and adult pornography. [00:42:11] Speaker 01: The government's reliance on that is utterly misplaced. [00:42:15] Speaker 01: Unless Your Honors have any additional questions for me, I appreciate the additional time. [00:42:23] Speaker 00: Thank you, Counselor. [00:42:24] Speaker 00: This case is submitted. [00:42:26] Speaker 00: I believe we are adjourned for the day.