-: SJC 1-2-8-2-9.
Commonwealth v Robert Restucci.
-: Mr. Falkner, good morning.
-: Good morning Mr. Chief Justice,
and my it please the court.
The issue in this case is whether
the police can sit on information for seven months
in the instance where one single image
is uploaded on March 17th.
I'm sorry, March 15th, I believe, 2017.
The investigation does not involve any updating
of the information whatsoever in any form.
On May- -: Does it make
any difference that it was uploaded
as opposed to downloaded?
-: I'm not sure that it makes any difference
whether it's uploaded as opposed to downloaded.
But we're-- -: What it's not uploaded
or downloaded, but you just look at it?
-: The question is, I think one has
to look at all of the facts.
And one has to look at the way
those actions are described in the affidavit.
So yes, you have the word uploaded here.
You have a platform, which is Skype.com.
And the only description of the platform
is that it enables people to communicate with one another.
The Commonwealth argues that that means
it's not a storage platform.
But there's nothing in the affidavit that says
that documents can't be stored there.
There's no description in the affidavit whatsoever,
as to what steps it takes to download.
Whether that, the Commonwealth in it's brief argues
that one would have to select this file
and click it and upload it.
It just says the file was uploaded.
We have no idea how that image came from being
on a computer in that residence to the Skype.
-: Okay, let's pose for a minute that it's not a digital file
but it's an actual photograph from the old days.
And a person says...
A named persons says to the police, "I sold him
this photograph of child pornography."
And seven months pass.
Any difference?
-: I think it's absolutely a difference.
If one looks at the case law,
in particular, under Raymonda.
The fact pattern that Your Honor provides,
involves the defendant paying for that photograph.
And now-- -: Let's say he gave it to him.
-: Again, I think, that's a little bit different,
because we'd have to know the circumstances
under which he gave it to him.
Did he give it to him in an envelope
and not tell him what it is?
Did he give it to him in the circumstances
where he would've seen that photograph?
-: What's most analogous to your case?
-: Excuse me? -: Which one would be
most analogous to your case?
-: You mean, between being in an envelope?
Being in an envelope.
And that goes back to, I think, the description
that we have here in this affidavit.
Which is, we just simply know that a file
where the series of numbers dot JPG,
or whatever it is, is uploaded.
But there's again, no description as to how that happens.
We don't whether that happened automatically.
We don't know whether it happened
along with a series of other photographs.
There's just simply no indication that whoever,
or however that was uploaded,
that the person who uploaded it saw it,
selected it, had any indication whatsoever
what was the contents of what that file was.
-: Isn't that kind of...
Isn't your case distinguishable from Raymonda?
'Cause Raymonda was thumbnails and it was downloaded.
And there was no indication that that thumbnails
where made, where clicked on.
And then they said this could have been just inadvertent.
So we don't know, and then the inference being that
someone that did this inadvertently would get rid of it.
But here, we have your client come into the possession
at some point of the material.
And then sharing it with somebody via upload.
So doesn't that distinguish it from Raymaonda?
-: I think this case is distinguishable from Raymonda
in the sense that I believe
that it's actually weaker than Raymonda,
in terms of the showing of the probable cause.
And this why: In Raymonda, the defendant
did not necessarily click on them,
but actually did view them.
And so there's evidence that a person
knew what the contents of those photographs were.
There's no evidence here in this case
to demonstrate that anybody actually viewed
this photograph besides the detective himself.
When he's preparing the--
-: I guess, I mean, we're doing probability.
But like, why would someone upload,
as opposed to download an image
if it's not to share it with somebody,
and not to pass it along?
He would have have the fiction
that someone had a file they never opened.
They're communicating with someone on Skype.
And they say, "Here's this file I never opened,
why don't you look at it too?"
-: So again, this goes to the factual detail
in the affidavit itself.
We do not know that this file was sent to any person.
What we know is simply, that it was uploaded to Skype.
We don't know the circumstances it was uploaded to Skype.
We don't have any description
of the mechanics at work in Skype.
We don't have any actual indication
that this was uploaded as a part of a communication,
as opposed to automatically.
Now the trial judge, in his endorsement
says that Skype is different from iCloud,
or an automatic cloud based system.
But there's no indication in this affidavit that it is.
We don't have anything to demonstrate
precisely, the set of circumstances
that Your Honor described.
Which is, one, that the defendant received it.
And two, that the defendant then in turn
deliberately, took some action to upload it
in order to share it with anybody else.
-: Well don't you have two separate points there?
You have the point about who on the end
of the computer that was searched, who was on that end?
Who the person was?
-: Right. -: That's one issue.
But then the second issue is,
what that person did or did not do?
And whether you upload it to Skype
or you upload it to WhatsApp,
or you upload it to the iCloud,
what difference does it make?
He's charged with possession, not distribution.
-: So the, one, it doesn't matter
who on the end of the house does it.
And I simply used the defendant as a description
for whoever is on the computer.
It does not matter for purposes of proof
what platform it's uploaded to.
The issue here is what matters is what was actually done
that the police are aware of.
And that's described in the affidavit
to show that whoever was on that computer
deliberately possessed it and intentionally possessed it.
And without any description of the process
of how it's uploaded, why it's uploaded, what's done?
Whether it involves individual clicks or any of that.
And that's why--
-: But isn't that really an issue for a trial
and not for a motion to suppress?
-: Well it's an issue for probable causes.
Because, if one looks at Raymonda,
one of the ways that Raymonda distinguishes
between who's a collector and who's not
is by the intentionality of the steps that are taken.
And the reason why whether one is a collector or not matters
is that the affidavit alleges that collectors
are more likely to continue to keep items
for a long period of time.
They don't delete them, and all of this stuff.
And the fact that the defendant
or whoever has uploaded it as a collector
is simply assumed in the affidavit.
And that's one of the bases that establishes
that this file is gonna be on this computer
because collectors are hoarders.
And once one possesses an item of this nature
one never gets rid of it.
One would never get rid of the devices.
One would preserve backups of the device.
-: Well doesn't he retain the uploaded file?
-: There's no indication that the uploaded file was retained.
There's no indication that the
particular uploaded file was found.
And even if the uploaded file had been found
as a result of the search warrant,
what's at issue here is whether there was probable cause
to issue-- -: If they didn't find the file
what are you moving to suppress?
-: I'm moving to suppress any
and all of the items that were found.
And the items that were found as a result of this
were child pornography, which what we're charged
-: with possessing-- -: Recognizing we don't
do post-talk analysis.
Which is what you're referring to.
There's a part of this jurisprudence
in the affidavit that says that these files
can never be deleted because it takes
someone really sophisticated to do so.
And the average person doesn't do so.
in their opinions to that.
How long is reasonable for that technology
never to be deleted for them to execute a search warrant?
-: It's a very good question.
I don't know what's necessarily reasonable.
One, we don't have any idea--
-: It can't be forever.
Falkner: Right. -: All right, that's number one
but for how long?
'Cause it would mean that the person,
and take the predilection and the hoarder stuff out of it.
But the person, say they were searching the computer
for evidence in a murder case.
How do I poison my spouse, right?
That type of stuff. Falkner: Right.
-: It would mean that you have to either replace
the computer or destroy a hard drive.
And people replace computers
in today's consumer world, right?
So how long is reasonable?
It seems like six months.
People keep computers for six months.
Seven months.
-: People may keep computers for years.
But the issue is, again, there's no indication
in this as to how long he had had the equipment
that he had in the first place.
We don't know at all from this affidavit
whether this is a 10 year old computer
that's on the verge of replacement,
and he went to the store the next day.
Or whether it was a brand new computer
that he's gonna have for several years.
And so the question becomes:
I think a fairer way to look at this is,
is there any reason why given the urgency
with which the Commonwealth contends these matters
need to be investigated.
The danger these cases possess: is there any reason
in a case where the Commonwealth has had this information
since March 15th of 2017.
Or at the very least, since May 4th of 2017.
It took them two months just to determine
what even the internet address of this home is.
To just sit there and do nothing.
-: We don't have penalty clauses, right?
Our jurisprudence is whether or not there's staleness
and whether or not there probable cause
to believe this material is still in this computer.
And of course, arguing for your client,
you're gonna say, the forever delete thing
prong of this analysis, seven months is outside of that.
-: Right.
-: So what's inside of it, though?
How long is okay?
Six months, five months, four months?
How will you do this?
-: I think that the best way to look at it is
that when this information is developed,
if the Commonwealth is investigating this,
and there's some reason.
One, if they get the information and act on it,
then it's likely that this information
is still going to be there.
The question is, if you just sit on it,
and just sit on it, and there's no indication
of anything ongoing, as we approach--
-: I don't see, I really don't understand that argument.
I think Justice Gaziano just made the same point.
It's not about how long the police sit on the information.
They may have all sorts of reasons
why they wanna sit on the information
from an investigatory purpose, if they don't wanna move.
Or they may not have reasons.
This issue is not how long they waited.
The issue is whether or not the affidavit
and the search warrant's stale.
And we know that people who keep and distribute
child pornography tend to hold on to it.
It's special to them.
Falkner: Well-- -: So I guess I'd start...
What I'm saying is you started your argument,
something along the lines that the Commonwealth
cannot sit on information for seven months.
They can sit on it for as long as they want to sit on it.
That's a separate analysis from whether or not
we're gonna determine whether or not it's stale.
And they may have a good reason to sit
on it for months or years.
-: I think I'd phrase it I guess differently.
If they are simply sitting on information,
if they wanna come back later
and argue that there is probable cause,
in most, in every other application of the law,
when information has just sat and become old,
it's often revived by some new fact
that demonstrates that it is an ongoing act.
And there's nothing here, after seven months
to demonstrate any kind of an on-going act.
-: They certainly do so at their peril.
I guess that's your point.
If they don't act on it right away.
It could be that they get 30 of these tips a week.
And we're looking at your snapshot.
But that's irrelevant for your client,
'Cause you're arguing probable cause as to your client.
But we have to look at the nature of the crime
and the nature of the item being searched for, correct?
So the old analogy: Drugs moving in and out of houses,
guns, collection of firearms, not so much.
That's where we typically look at, right?
-: I agree, and I thing firearms are in some ways...
May I, I see I'm just about to run out of time?
May I answer it Mr. Justice Gaziano's question?
Firearms are, I think, in some ways apt in the sense
that people that own firearms tend to wanna keep them.
And there's some jurisprudence to that effect.
And in the Commonwealth's brief,
they site Commonwealth versus Hart.
Which is a recent appeals court case.
And in that case, they found that
absent of any kind of indication
that the possession was ongoing, 60 days was too much.
I'm not necessarily saying 60 days is too much.
I'm not sure whether there's a bright line rule.
-: You also run against not binding on us.
But there's a lot of circuit court decisions
that say, because of predilections and characteristics
of people that view child pornography,
seems not to be a lot of time limits
on staleness in those cases.
Falkner: Yes. -: Not saying we're gonna
go there but you run into that case law too, right?
-: Yes, and that does bring me back to one final point.
In the below end here, I've argued
that there's no probable cause
under article 14 in the 4th Amendment.
To the extent that Your Honors find that the
circuit precedent is unpersuasive,
there's room under Article 14 to find
that there's no probable cause.
And if there are no further questions--
-: On last question I have.
What can we infer from the fact
that this photo was uploaded to Skype?
I think that's all we know from the affidavit, correct?
-: Correct, and I-- -: So what do you say
is a fair inference from that?
-: I think the only fair inference from that is
that it existed on a computer.
And that it-- -: On his computer,
or on a computer? On a computer.
On a computer that was connect to the IP address,
associated with that home.
And that that image came from being on that computer
to being on the internet.
That's all we know.
-: Okay, when you say it's on a computer,
can we infer that it was on a computer to be searched?
-: Well they're looking to search
all of the computers in the home.
-: Right, right, but I mean,
that's what I'm trying to get a since of.
Do you agree that the uploading indicates
that in one point in time, at the time
of the uploading, at least, that photograph
was on one of the computers in the home?
-: Or it was on some electronic device
that was connected to a network in that home.
-: Okay, all right, thank you.
-: Thank you Your Honors.
-: Mr. Pell.
-: Thank you Mr. Chief Justice.
Good morning and may it please the court,
Gabriel Pell, Assistant District Attorney from Middlesex,
on behalf of the Commonwealth.
The denial of the defense motion to suppress
and the subsequent judgements of conviction
arising from the conditional plea afterwards
should all be affirmed because his challenges
to the warrant fail.
And as Justices Lowy and Gaziano both pointed out,
this is not a question of whether police
sat on the information.
It's simply a question of when they went to search,
was there probable cause to believe
that the evidence they were looking for was still there?
-: But what about the Chief's last question to your brother?
If it's not clear what computer the image was uploaded from,
is there really probable cause to believe that it was
a computer that belonged to him?
-: The ownership of the computer,
and I think my brother is upfront about this.
The identity of the target at the time
that the police go to search is irrelevant.
They don't know who it is at that point.
They know someone utilizing the IP address
associated with a Verizon service address
uploaded a file to Skype.
That gave them probable cause to go into the residence
and try to find out what computer had uploaded it.
To try to find the file itself.
And try to find the identity of the user
who was using that IP address.
And again, it wasn't litigated.
I think my brother did concede it below.
But the identity of the user isn't relevant at that point.
It's only a question of whether or not
the information is still stale.
Is still fresh seven months later.
-: Well I guess it does matter though,
what computer it came off of, right, or no?
-: Well so one of the things that the
affiant did in his affidavit.
And it's a pretty lengthy affidavit.
Is he went and he surveilled that residence.
And he said there are no open unsecured networks there.
And so that supports the inference
that whoever was using that IP address
was using it with the password.
So it's probably, and we're talking
about probabilities here throughout.
I'm not gonna be able to say it enough times.
We don't have to exclude all the hypotheses.
So somebody in that residence used
the IP address to upload to Skype.
That's where we start.
And then the question is, seven months later,
is that information still sufficiently fresh?
And it is, both because of the profile
of child pornography collectors,
and because of, as Judge Posner
recognized in the 7th circuit;
basically, the way that the technology works
and the way we use the technology.
So I would like to talk about--
-: Before you leave that, so okay,
so you say because they're password protected internet
at this house, you can--
-: That the inference from him saying
there's no open unsecured, yeah.
-: So I just wanna make sure I understand.
'Cause we've got that fact.
And we have that's it's uploaded.
What is the significance between uploaded
and downloaded then?
-: Sure, I think the significance of uploaded,
and some of the cases recognize it explicitly.
United States versus Chezem.
And there's a state case that I site in my brief
is that if you're uploading a file,
the common sense inference, not just beyond,
way beyond probable cause is
that you already possess that file.
If you downloaded it, the inference is
you found it and you put it on your computer,
or on a network drive, or on the cloud.
-: By the way, and that's my common sense.
But I'm not an IT professional.
Would an IT professional agree with that?
-: You know, one of the things that I know
is that I'm also not an IT professional.
And I think the world, the universe that we're talking
about is the common sense inferences
that a clerk magistrate reviewing an application
for a search warrant would have in this court
under and open review.
-: And I'm just pushing you a little bit.
I'm not trying to be difficult here.
But people who are dealing in child porn
on the internet tend to be pretty good computer users
'cause they're protecting themselves.
So do we draw, I mean 'cause--
-: I would not agree with that Justice Kafker--
-: I mean, this guys got a number on the picture.
He's got a different name on the account, right?
He's not completely unsophisticated with a computer.
-: I just don't think we can generalize from that.
-: You're generalizing the other way.
So I'm just trying to make sure I understand--
-: I think what we can generalize about people
who possess child pornography.
And it think that this is the important thing is,
and the importance of the collector inference
is that that means that somebody has come
in contact with it intentionally,
because they're interested in it,
such that if they have a file,
they're either gonna keep that file.
Or if by some chance they don't have that file
they're gonna replace it by acquiring another one.
-: Can we draw that inference,
because this is a particularly explicit
piece of child pornography, right?
We have an open shot of the child's private.
-: And then I'm not gonna start kind of gauging
the spectrum of these but they get far worse.
And I think that's one of the things
that's important to recognize here,
is when we talk about child pornography,
there's a tendency to do so in innocuous terms
that gloss over it's true nature.
And I'm guilty of this too, 'cause in my brief
to save space against the page limit,
I said CP a bunch of times.
But even spelling it out doesn't
adequately convey what this material is.
And what it is it memorializes instances
of child sexual abuse and child rape.
And it's probably more properly referred
to as child sexual abuse imagery, child rape imagery.
-: I get the rhetoric.
I'm just trying to understand again,
the science a little bit.
So we have a pretty explicit picture of child pornography.
We have an upload rather than a download.
And we have a secured network at the house.
So those are the key facts we have in terms
of whether this is gonna be retained or not?
-: They are and I just have to say, Your Honor,
it's not just rhetoric.
And I mean, Justice Gaziano recognized
in Commonwealth versus Feliz,
which I didn't site in my brief.
But this material, it's harmful, it re-victimizes people--
-: We all know it's despicable stuff.
That's not what-- Pell: But that's--
-: We're trying to figure out though,
how likely it is to be retained--
-: It's not standard internet fair, is the point.
It's just possessing this material.
Because of that harm has been made
illegal just to possess it.
It's taboo, it's public shame inducing.
It's potentially liberty depriving.
So the idea is that, if you run those risks,
how probable is it that you're gonna hold on to it?
-: Right, some of the cases, and I don't know.
You only have to defend this affidavit.
But do you agree that there's no such thing
as forever probable cause?
Because when we look at the cases that talked
about collectors, and hoarders, and predilection.
And we look a the cases that say things are never deleted.
If you take that to one extreme
you would say, there's probable cause two years out, right?
Pell: Sure.
-: So how far is to far?
-: Well to answer the first part of your question,
I don't agree that it's forever probable cause.
And I don't know if you're gonna find
this satisfying or not, but I think the only answer
is that what this court recognizes
in Commonwealth versus Achu years and years ago
is that each case has to be determined
on it's own facts when it comes to staleness.
That we don't like bright line rules.
'Cause that's inconsistent with the
touch tone of reasonableness.
And as the 1st Circuit and other courts have recognized,
staleness is not simply a matter of counting days.
So every case has to be evaluated on it's facts.
In the 2nd Circuit's of the United States versus Raymonda,
it's not just we say, "Oh, digital child pornography,
you can look for this forever."
You look at the facts, and in that case
all you had was the webpage view,
where there were thumbnails of child pornography
that were never downloaded.
So obviously, the staleness of the analysis there
is gonna be very different from a case
where you can prove at least to the extent
of probable cause in the affidavit,
that a user took the next affirmative step--
-: The strange part about Raymonda and some of that
is it's almost like a morality play
where it says this violation wasn't that bad.
So we're gonna give you pass, versus, someone that hoards.
So I mean, that's a charging decision,
not a probable cause decision.
So if in Raymonda, you could get evidence of the thumbnails.
And I think the language of Raymonda is,
well, a user who just has inadvertently would be
disgusted and would delete it.
But then you go to the other cases and say,
well, it can never be deleted,
and it's illegal to possess.
So how does that play in without us sayin',
"We like this, we don't wanna prosecute
these type of offenders.
We'll just come at it inadvertently 'cause it's unfair.
Versus, a cold probable cause determination.
-: I don't think it's a charging decision,
I think it's about the technology.
And so, I read a bunch of these cases.
I don't remember how much Raymonda
gets into this, specifically.
But the idea is, if all you do it on a webpage
it's not gonna of to your hard drive.
It may go into your temporary internet folder.
But that's a different place where things
that get deleted are gonna be rewritten much more quickly.
And so, when we talk about probable cause
based on how the technology works, it's not a pass,
it's not because it's a different level of culpability.
It's because if you didn't download it to your hard drive.
-: Raymonda was not downloaded.
That's the thing, as they say, that the webpage was viewed.
But as I recall, they weren't even sure
if they had enlarged the thumbnails.
But even enlarging the them would be different
than saying, "Put this on my computer."
But if you have an upload, to go to one of the questions
we started with, it means that it is already
on either a drive, on your device itself,
or that you've downloaded it on a thumb drive.
-: That was the Chief's question to your brother.
Which is, does it necessarily mean
it's on your computer to download?
What's your answer to that?
I mean to upload it.
-: My first answer is that nothing
that I'm gonna talk about means necessarily.
Because it's a probable cause analysis.
So we're not gonna exclude every potential hypothesis
and indulge in possibilities.
But from a commons sense inference from all of us,
we're not IT professionals using it as
if you upload a file, it means it's accessible
to you from a directory.
It can be a directory on your device.
It could be a thumb drive that
you've plugged into your device.
It could be a cloud solution that
you can access through your device.
-: But how much of that is in the affidavit?
Or said another way, when you say
we're all not IT professionals.
How much, if you upload it you said,
there's an inference that you possess it?
So does your average neutral
and detached magistrate understand that concept?
-: I believe so because I think, you know,
at this point, we're all using computers all the time.
So it you're using email, and you go to attach
something to your email, consider that an upload process.
And if you're doing it to Skype,
the difference is the client isn't...
The email program might be on your computer.
But if you do it on Gmail, you're accessing that on the web,
so your attachment isn't uploaded, as I understand it.
-: The ordinary magistrate is also
the ordinary computer user?
-: That's an interesting question.
I think what we have to think is the clerk magistrate
can draw average, common sense inferences
that are available to the average user.
And I think that's true in all aspects.
Not just digital warrants.
But you know, going back to Commonwealth versus Gentile,
where we can say that the clerk magistrate
can infer facts about the geography of the area
even if they're not in the affidavit.
Or Commonwealth versus Achu, where we say
you can infer that locker at a bus station
was rented for a short time.
Does any particular clerk magistrate make that inference?
Maybe, maybe not, but it's from the general pool
of knowledge that they can draw on,
and this court can draw on.
-: Can I ask you, probably a stupid question?
When I-- Pell: There are
no stupid questions. -: When I read my newspaper
in the morning and it lets me copy a story,
and then send it to somebody else,
am I uploading that story?
Like, I'm sending and email.
I wanna send my kid the story.
So I read the story in the "Globe" or the "Harold,"
or the "Worcester Telegram," and I hit on the thing
that allows me to send.
Am I uploading or downloading that thing.
-: I could give you my best guess,
but that's beyond kind of the facts
that we're dealing with here.
-: But it relates to that common sense
thing you're talking about.
Our understanding of what uploading
versus downloading means.
-: From the case law I would say
you're not downloading that, and you're not uploading it.
You're using the webpage service
to send it from that webpage.
There might be-- -: Neither a download
or an upload, it's somethin' else?
-: It's something else.
Your viewing of that webpage based on the Raymonda analogy
is going to be tracked on your computer.
There might be temporary internet
files that result from that.
There could be a cookie that results from that.
But your sending it is you're actually interacting
with that newspaper's web server.
As opposed to bringing something to your server.
You could do it a different way.
If you set I wanna print this to PDF and download it,
and then send that to your child.
Then you'd have downloaded it.
And then it would be on your hard drive.
And that would a different kind of a digital
fingerprint or footprint than if you had just viewed it.
-: So let's examine there reach of the appropriate inference.
Okay, I take your point that need not be certain.
So you say that then a reasonable magistrate
reading this affidavit can say that it was
in the possession, or that it was on one of the devices
at the time that it was sent, correct?
-: On the device or accessible from the device running Skype.
Accessible from a cloud solution,
or thumb drive, or an external hard drive.
But yes, accessible through that same device.
-: And when you say accessible from the cloud,
do you mean accessible from information
in the possession of somebody in that household
that's stored in the cloud?
-: The person sitting at the console, yes.
-: Okay, so that it may not be physically on the hard drive.
It could be in the cloud, but accessible?
Okay, and so, you know that whoever did
that had access to that photograph and chose to send it.
Do we know that from the fact that it was uploaded to Skype?
-: We can infer an intent to share it to a 3rd party.
We know that is was uploaded.
We don't know that it was sent.
And we don't know who the recipient was.
But it think...
And I have to address this, as my brother was saying,
we don't know much about Skype.
Page 47 of the record, Skype is an application
that facilitates video and voice chat.
But it says explicitly, it also says you can exchange
digital documents, such as images, and text, and video.
And you can transmit both text and video messages.
So it is a communication platform is the clear inference.
-: So what else to you think can be inferred?
You refer to it as the profile of the collector.
Is it your view that you can infer
that if a person does this once,
that they therefore, are a collectors of child porn?
And do you need that inference
in order to get probable cause?
-: We do not need that inference to get probable cause.
I think you can infer from it from these facts
that somebody did this intentionally.
And it does satisfy two of the scenarios
that the 2nd Circuit identified
in the United States versus Raymonda.
An upload to Skype infers that there is
at least an attempt at redistribution after prior access.
That's one collector based inference.
And the other is that you've done
a series of sufficiently complicated steps
to show intentional interaction with it.
But we don't need the collector inference here.
We just need to know how the technology works.
As Judge Posner recognized, a realistic understanding
of modern computer technology and usual behavior users.
That's the files don't get deleted even if you try.
So it doesn't matter if you're
affirmatively trying to preserve them.
It's that people backup their data on external drives.
It's that the size of the drives
are getting bigger and bigger.
So there's no real reason to delete.
And even if you do, because a file
strays until it's overwritten,
it's less likely it's gonna be overwritten.
-: So everyone understands that point
and it answers the question that Judge Lowy
obviously was answering when he said it was uploaded.
But everything that you just said,
does Joe assistant clerk magistrate in the District Court,
who might not have a computer on her desk, know this stuff?
What's the limit of the inference?
-: Those last three factors that I recited,
they actually are in the affidavit.
The deleted files not being gone until they're overwritten,
and the increasing sized of hard drives.
-: Right, right, but the core issue
is the inference that if you uploaded it you possessed it?
That's the core inference, right?
-: I think multiple cases recognize that you can't
really expect the affiant to set set out from the ground up,
exactly every part about how computers work.
-: Every part, I mean, there's two lines in the ruling.
And I think the first line was something.
This is uploaded not downloaded.
Something like this, not everything.
It's the key point.
-: Right, well I think again, today most users
would understand what it means to download
something is to take it from the internet
and put it on your computer.
And to upload, to take it from your computer
and put it back out there for someone else to have it.
And as United States versus Chezem,
the 9th Circuit recognized, that's a key distinction.
I think it's Dinath in a state based case
also recognized that distinction
between downloading and uploading is key.
And we have to let clerk magistrates
and reviewing courts make those inferences
from common sense and the average
computer user's experience.
I see that my time is up.
-: Indeed it is.
Can I press you on one last point
in regard to the durational issue?
So let's assume that somebody decides
they're going to get rid of their computer
and get a newer model.
The affidavit says, well, they're not gonna...
They may throw away the computer,
but they're not gonna throw away all the stored data.
They're going then to some other storage medium,
and either put it back into the new computer
or store it separately.
If it had been deleted from the old computer,
when you basically, gather up the data from the hard disk,
are you gathering data, or only saved files?
-: Again, that's a technical question.
It's possible that if you migrated old data,
that then had a deleted file on it.
And I know this from reading some of the cases for this.
I don't wanna go too far outside.
That this could be still a residual part of it.
A thumbnail that if it had ever been,
kinda if the directorate had ever
been archived, even if it's deleted,
a fingerprint might still be there.
But I think the bigger point is,
and I make this in the brief.
That just because you've upgraded your device these days,
doesn't mean that you've gotten rid of your old device.
And the cases bare this out.
And I think in Anthony, we had a homeless defendant
who had multiple computers.
And I cataloged them in the brief.
Every time you go into these houses
there's multiple computers.
So one possibility is, you upgrade
and you retain the device.
In which case, it's still there.
And if you deleted it on that device,
the police will find it when they go into the house
and be able to recover the deleted file.
Or you migrated the data over,
because in this day and age, it'd be a crisis
for most of us if we didn't have access
to the data that we use on our previous devices,
just because we got a new device.
And so, with the collector inference,
you can believe that they took
affirmative steps to preserve it.
But even if you don't have that,
there's no reason to believe they deleted it.
And even if you want to say that they deleted it,
there's no reason to believe that they did so
in an irretrievable way.
And if they did on that particular device,
it could've been backed up at some point.
Again some of these backups are running automatically.
-: I don't understand the difference
between that and forever period of time.
-: I think it depends on the facts in the affidavits.
So, like I said, in Raymonda,
we're not gonna say that that's forever.
Because where there's no indication
that someone went to take the fundamentals on that webpage.
-: But here you're saying it could be forever?
Doesn't have to be seven months, it could be,
I don't know, 18 months, two years, five years, 10 years.
-: In this case, it could certainly be a significantly longer
period than seven years, seven months.
And the cases from the Federal Circuits
recognize that as well.
They go out to three years.
In Purdo, once the 7th Circuit declined
to say as a matter that even if it was
two or four years old, that it would be stale.
-: But as technology develops...
I'm sorry to cut you off.
But as technology develops, basically,
you are sort of nearing the verge of a forever
kind of a prospect, aren't we?
-: I think it depends which technology application.
So you know, one, there's Snapchat out there.
So if somebody were to send a child pornography image
to somebody else via Snapchat,
we couldn't necessarily say we're gonna take
the recipient's device and search for it.
Because the way that technology works,
is unless you take an affirmative step to preserve it,
that file's gonna go away.
So we'd have to know more about that recipient
to know if they wanted to receive it
before we go search for it.
So the fact that it's a digital file
wouldn't do that for us.
And that's why each case does have
to be evaluated on it's own facts.
-: I guess one last question.
I guess this is my second last question,
since the last one was not, apparently.
How much credence do we give to the federal case law,
where they are applying the good faith principle
to their evaluation and search warrant, and we don't?
-: Well, you know, I wanna echo Justice's
Lowy and Cipher and their call,
that we should be considering good faith here
and in appropriate cases.
But I don't think-- -: Let's assume that
we haven't got there yet.
-: Fair enough, I don't think we need it in this case.
I think there are some cases, where they rely on good faith.
But we don't need those.
The overwhelming weight of the federal cases
from many, many circuits is that this information
isn't gonna be stale after a month, and even years,
even before they get to a good faith analysis.
So in Forshette, I think it's 15 months.
In Chezem, it's 20 months.
And I'm not going to be able to do all of them by months.
But it goes, in the 1st Circuit Aldonis Miraldo case,
I think it goes to three years.
Again, it all depends on the facts.
But we don't need the good faith exception in this case.
This was a solid warrant.
(judge murmurs) -: Thank you.