Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 1 of 56 Page ID #:3615 1 1 UNITED STATES DISTRICT COURT 2 CENTRAL DISTRICT OF CALIFORNIA - SOUTHERN DIVISION 3 HONORABLE CORMAC J. CARNEY, U.S. DISTRICT JUDGE 4 5 UNITED STATES OF AMERICA, 6 7 8 9 Plaintiff, vs. MARK ALBERT RETTENMAIER, Defendant. ) ) ) ) ) ) ) ) ) ) CERTIFIED Case No. 8:14-cr-00188-CJC-1 10 11 12 13 14 REPORTER'S TRANSCRIPT OF 15 PRETRIAL CONFERENCE 16 MONDAY, MAY 15, 2017 17 9:59 A.M. 18 SANTA ANA, CALIFORNIA 19 20 21 22 23 24 25 DEBBIE HINO-SPAAN, CSR 7953, CRR FEDERAL OFFICIAL COURT REPORTER 411 WEST FOURTH STREET, ROOM 1-191 SANTA ANA, CALIFORNIA 92701-4516 dhinospaan@yahoo.com UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 2 of 56 Page ID #:3616 2 1 APPEARANCES OF COUNSEL: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 FOR THE PLAINTIFF: SANDRA R. BROWN United States Attorney BY: ANTHONY BROWN Assistant United States Attorney Criminal Appeals Section 312 North Spring Street Suite 1000 Los Angeles, California 90012 (213) 894-8230 SANDRA R. BROWN United States Attorney BY: GREGORY SCALLY Assistant United States Attorney United States Courthouse 411 West Fourth Street Suite 8000 Santa Ana, California 92701 (714) 338-3592 FOR THE DEFENDANT: BIENERT MILLER & KATZMAN PLC BY: JAMES D. RIDDET, ESQ. KENNETH MILLER, ESQ. 903 Calle Amanecer Suite 350 San Clemente, California 92675 (949) 369-3700 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 3 of 56 Page ID #:3617 3 1 SANTA ANA, CALIFORNIA; MONDAY, MAY 15, 2017 2 9:59 A.M. 3 - - - 4 09:59AM THE COURTROOM DEPUTY: 5 SACR 14-188, United States of America versus Mark Albert 6 Rettenmaier. 7 Counsel, please state your appearances. MR. BROWN: 8 9 09:59AM 10:00AM 10 and Greg Scally for the United States. Anthony Brown Also at counsel table is FBI Special Agent Cynthia Kayle. THE COURT: Good morning to all of you. 12 MR. RIDDET: Good morning, Your Honor. James Riddet 13 and Ken Miller for Dr. Rettenmaier, and he's present at counsel 14 table. THE COURT: 15 17 Mr. Miller. Hello, Dr. Rettenmaier. Hello, Hello, Mr. Riddet. I know everybody is anxious for my rulings on the motions 18 to suppress, and I do have a tentative. 19 ruling from the bench as opposed to a written order. 20 will take my time and give you what my tentative findings are 21 on the motions. 22 10:00AM Good morning, Your Honor. 11 16 10:00AM Calling Item No. 1, I'm just going to be But I The bottom line is my tentative is to deny 23 Dr. Rettenmaier's motion to suppress based on the warrantless 24 search of his hard drive but grant his Franks motion as to the 25 search of his home. UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 4 of 56 Page ID #:3618 4 1 2 3 10:01AM 10:01AM 10:02AM 10:02AM 10:02AM Let me first address Dr. Rettenmaier's motion to suppress based on a warrantless search of his hard drive. The Fourth Amendment provides that the right of the people 4 to be secure in their persons, houses, papers, and effects 5 against unreasonable searches and seizures shall not be 6 violated. 7 justified by an exception to the general rule. 8 when the government intrudes upon an expectation of privacy 9 that society is prepared to consider reasonable. 10 Warrantless searches are per se unreasonable unless A search occurs Dr. Rettenmaier's motion highlights five searches that he 11 contends violated his Fourth Amendment rights; Mr. Westphal's 12 review of recovered data, Mr. Meade's first replication of 13 Mr. Westphal's search, Mr. Meade's replication of 14 Mr. Westphal's search and review of the results with 15 Agent Riley, Mr. Keown's -- I don't know if he's an agent at 16 the FBI -- his osTriage search, and Agent Riley's return trip 17 to Geek Squad City. 18 I do not believe there is any constitutional problem with 19 any of these searches because Dr. Rettenmaier had no reasonable 20 expectation of privacy in his hard drive. 21 the government and its purported confidential human sources at 22 Geek Squad City were free to conduct any search of the hard 23 drive without a warrant and without violating Dr. Rettenmaier's 24 Fourth Amendment rights. 25 As a consequence, As a prerequisite to establishing the illegality of a UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 5 of 56 Page ID #:3619 5 10:03AM 1 search under the Fourth Amendment, a defendant must show that 2 he had a reasonable expectation of privacy in the place 3 searched. 4 expectation that his activities would be private and that his 5 expectation was one that society is prepared to recognize as 6 reasonable. 7 10:03AM at Geek Squad City after he gave it to Best Buy and repeatedly 9 consented to data recovery services is not one that society is 10 Dr. Rettenmaier surrendered his computer to Best Buy on November 1st, 2011. 13 which he selected as an add-on offer to receive Best Buy's data 14 backup or transfer. 15 Dr. Rettenmaier's desire for data recovery in its initial 16 service order stating that the technician should back up info 17 on his hard drive. Before he did so, he filled out a form in Best Buy properly memorialized The Best Buy technician, however, wasn't able to repair 19 Dr. Rettenmaier's computer because it had a bad hard drive. 20 The technician's notes clearly state that Dr. Rettenmaier would 21 need data recovery services if he wanted to retain any of the 22 information on his hard drive. 23 10:04AM prepared to recognize as legitimate or reasonable. 12 18 10:04AM Dr. Rettenmaier's expectation of privacy in his hard drive 8 11 10:03AM A defendant may do so by demonstrating a subjective Dr. Rettenmaier's initial service authorization did not 24 include data recovery services. Presumably Best Buy contacted 25 Dr. Rettenmaier once its technician determined that the hard UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 6 of 56 Page ID #:3620 6 1 2 10:04AM 10:05AM 10:05AM Buy and explicitly authorized data recovery services on the 4 hard drive. 5 had approved data recovery services. 6 printed section entitled "I agree to or that," which is 7 followed by 12 short statements. 8 his signature in entirely legible print is the Statement 8 9 which reads, "I am on notice that any product containing child 10 He signed another service order stating that he His signature follows a Approximately one inch above pornography will be turned over to the authorities." Subsequently Best Buy sent Dr. Rettenmaier's hard drive to 12 Geek Squad City. 13 authorization for data recovery services did not transfer to 14 Geek Squad City, so Geek Squad City called Dr. Rettenmaier on 15 November 28, 2011. For some reason, Dr. Rettenmaier's signed 16 Geek Squad City's caller, Ariana, immediately identified 17 herself as "Geek Squad Data Recovery, where you sent your hard 18 drive." 19 that the call could be recorded and asked for his consent. 20 then told Dr. Rettenmaier Geek Squad City needed to get a voice 21 waiver from him and elaborated that Geek Squad City needed his 22 express consent, which would be recorded on the phone call. 23 10:06AM On November 20th, 2011, Dr. Rettenmaier returned to Best 3 11 10:05AM drive was the issue. Dr. Rettenmaier then said "sure" when she informed him She Dr. Rettenmaier affirmatively stated that he understood 24 and was willing to consent over the phone. Her first 25 substantive question was whether the data Geek Squad City was UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 7 of 56 Page ID #:3621 7 10:06AM 1 attempting to retrieve was being used for any litigation or 2 regulatory matters. 3 confirmation that he was requesting Geek Squad and its agents 4 to inspect, evaluate, and identify the problem and/or retrieve 5 and minimize the damage to the equipment, data, and media. 6 10:06AM 10:07AM data for up to 30 days," and she warned Dr. Rettenmaier that 8 his data may not be retrievable and, therefore, not useful for 9 any particular purpose. 10 Dr. Rettenmaier then confirmed his address as the Rodeo 11 Circle address of his personal residence, not the Hospital Road 12 address he put on the initial form. She then told him that the hard drive had been diagnosed 14 for a Level 2 recovery, that the hard drive appeared to have 15 been restored somehow, and that there appeared to be some 16 underlying data visible. 17 recovery, she stated that Dr. Rettenmaier agreed to be solely 18 responsible for all data found and transferred by Geek Squad 19 including any penalties that are associated with the possession 20 of said data. 21 agree" if he agreed to the terms and conditions, 22 Dr. Rettenmaier stated, "Yes, I agree." 23 10:07AM She went on to state, "Geek Squad will store any retrieved 7 13 10:07AM She then sought Dr. Rettenmaier's In her elaboration of Level 2 Then, when prompted by Ariana to say, "Yes, I After Dr. Rettenmaier agreed, Ariana then went over the 24 procedure. She explicitly stated that Geek Squad City would 25 call him to go over the results of its work with him including UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 8 of 56 Page ID #:3622 8 10:08AM 10:08AM 10:08AM 10:09AM 1 the amount of data that was recovered, the quality of the data. 2 She told him that if he was unsatisfied with the results, Geek 3 Squad City would "send it back to the Best Buy store for you to 4 pick up." 5 He said, "Okay." 6 And then Ariana asked him if he still wanted to continue 7 with the data recovery, to which he said, "Yes." 8 response to her question as to which were the most critical 9 files he wanted to have retrieved, Dr. Rettenmaier said, "Uh, 10 well, I guess I need all my photographs." 11 specify Excel files, Quicken files, and text and Word 12 documents. 13 that he wanted to go ahead with data recovery and that those 14 were his most critical files, to which he said, "Okay." 15 He went on to also She then told him that she would log in the notes Dr. Rettenmaier, a sophisticated doctor, repeatedly told 16 Best Buy that he wanted his data recovered. 17 requested repair was unsuccessful, Best Buy gave him another 18 opportunity to consider whether to authorize data recovery. 19 did so by signing a service order on which Best Buy clearly 20 informed him that any device containing child pornography would 21 be turned over to law enforcement. 22 10:09AM Then in When his initially He Then, on top of that, Best Buy sought his consent a third 23 time calling him to discuss and obtain his consent for the 24 particular form of data recovery necessary. 25 call, it was made clear to Dr. Rettenmaier that the hard drive In that phone UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 9 of 56 Page ID #:3623 9 10:09AM 1 was no longer at the local Best Buy, that given his consent, 2 Best Buy would inspect his hard drive, retrieve all the data it 3 could, and evaluate the quality of the data retrieved, that 4 Best Buy would store his retrieved data separate from his hard 5 drive, and that he would be responsible for all data found and 6 transferred by Geek Squad, including any penalties that are 7 associated with the possession of said data. 8 9 10:10AM 10 11 10:10AM 10:10AM 10:11AM Having been made aware for a third time at even greater detail what Best Buy would do to his hard drive, Dr. Rettenmaier gave clear, unambiguous, repeated consent. None of Dr. Rettenmaier's actions remotely exhibited an 12 actual expectation of privacy or showed that he sought to 13 preserve his hard drive as private. 14 concept of an interest in privacy that society is prepared to 15 recognize is reasonable is, by its very nature, critically 16 different from the mere expectation, however well justified, 17 that certain facts will not come to the intention of the 18 authorities. Even had he done so, the 19 Dr. Rettenmaier cannot credibly argue that he was 20 surprised when Geek Squad City technicians, strangers to him, 21 performed the data recovery services he authorized, which, as 22 Geek Squad City told him, entailed recovering his images 23 identified by him as critical data and examination of the 24 quality of the recovered images. 25 Dr. Rettenmaier cannot reasonably have expected that the UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 10 of 56 Page ID #:3624 10 10:11AM 1 child pornography on his hard drive would remain private 2 through the data recovery process he authorized. 3 Dr. Rettenmaier's only reasonable expectation was that once 4 child pornography was found, Geek Squad City would turn around 5 and show it to the FBI given that Geek Squad City put him on 6 notice that it does so whenever it finds child pornography. 7 10:11AM 10:12AM 10:12AM Because none of the searches of Dr. Rettenmaier's hard 8 drive infringed on a reasonable expectation of privacy, his 9 first motion to suppress evidence found on his hard drive is 10 11 10:12AM And denied. Now I will turn to Dr. Rettenmaier's second motion, the 12 Franks motion to suppress, as that motion relates to the search 13 of his home. 14 must establish by a preponderance of the evidence that, one, 15 the affiant knowingly and intentionally or with reckless 16 disregard for the truth made false or misleading statements or 17 omissions in support of the warrant application; and, two, the 18 false or misleading omission was material; that is, it was 19 necessary to the finding of probable cause. To prevail on a Franks challenge, a defendant 20 Agent Kayle's affidavit contained several false or 21 misleading statements or omissions that she made with reckless 22 disregard for the truth. 23 stated in the affidavit that the Jenny image was child 24 pornography. 25 and disturbing, was not child pornography. Perhaps most troubling, she falsely However, the Jenny image, although distasteful It was child UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 11 of 56 Page ID #:3625 11 10:13AM 1 erotica, the possession and viewing of which is not unlawful. 2 The image is not sadistic. 3 of pain, physical or mental cruelty, or bondage, nor is the 4 image a lascivious exhibition of the genitals as no genitalia 5 can even be seen in the image. 6 10:13AM 10:14AM her affidavit as she should have done so. 8 relied on the simple description of it provided by Agent Riley. 9 But Agent Riley never said the image was child pornography in She apparently 10 her communications with Agent Kayle. 11 description of it that she did provide to Agent Kayle falls far 12 short of describing child pornography. And her simple Agent Kayle's affidavit also failed to state that the 14 image was discovered on the unallocated space of 15 Dr. Rettenmaier's hard drive. 16 communication with her supervisor, Michael Osborne, clearly 17 reflects that she was acutely aware of the evidentiary 18 significance of images on unallocated space, specifically, the 19 difficulty in proving that the image was created, accessed, or 20 deleted by Dr. Rettenmaier or, in other words, that it was 21 knowingly possessed by him. 22 10:14AM Agent Kayle did not bother to view the image before filing 7 13 10:13AM It does not depict the infliction Yet Agent Kayle's e-mail Finally, Agent Kayle's affidavit falsely stated that no 23 attempts other than Agent Riley's January 6, 2012 visit to Geek 24 Squad City were made to obtain evidence of child pornography. 25 That statement was simply not true. Either individually or UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 12 of 56 Page ID #:3626 12 10:15AM 1 together, Agent Riley and Mr. Meade, a paid confidential human 2 source for the FBI, had conducted three separate searches of 3 the hard drive without a warrant. 4 attempted by Mr. Keown with a program osTriage. 5 those searches or attempted search was disclosed by Agent Riley 6 or mentioned by Agent Kayle in her affidavit. 7 10:15AM 9 finding of probable cause or, more specifically, the finding 10 that there is a fair probability that evidence of a crime may 11 be found in the place to be searched. Once corrected, Agent Kayle's affidavit merely describes 13 one image of child erotica found on the unallocated space of 14 the hard drive. 15 standard boilerplate language regarding the collection habits 16 and character of people who view child pornography. The corrected affidavit also included the This one image of child erotica, even considered together 18 with the standard boilerplate language not tailored to any 19 specific fact about Dr. Rettenmaier or his behavior, is simply 20 not sufficient to search Dr. Rettenmaier's entire home, the 21 place where the protective force of the Fourth Amendment is the 22 most powerful. 23 10:16AM The second step of the Franks analysis is to determine whether the false or omitted information was necessary to the 17 10:16AM Yet none of 8 12 10:15AM And a fourth search was Because I find the corrected affidavit does not support 24 probable cause to search Dr. Rettenmaier's home, his Franks 25 motion to suppress the evidence seized from his home is UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 13 of 56 Page ID #:3627 13 1 2 10:16AM 10:17AM 10:18AM my best to answer them. 4 evidence pretty extensively. Obviously I've gone through the 5 One case that came down by the Ninth Circuit that I 6 thought was quite significant, and it came down after our 7 evidentiary hearing, was the United States vs. Perkins. 8 indicates specifically that, when you're dealing with alleged 9 child pornography under the category of lascivious exhibition And it 10 of the genitals, that you must attach the image for the 11 magistrate's independent review. 12 proposition that child erotica by itself is not sufficient to 13 support probable cause. And it stands for the I found this case quite helpful and instructive in this 15 case as far as whether the Jenny image that was not given to 16 the magistrate judge for the warrant, but which was submitted 17 at the evidentiary hearing, and as I indicated, I do not 18 believe that that image is child pornography. 19 sadistic, which is a very high burden to prove, and it is not 20 lascivious exhibition of the genitals. 21 10:18AM If there are any questions any of you have, I'll try to do 3 14 10:17AM granted. It's not I know there was other wording in the affidavit talking -- 22 I'll get the specific wording -- that there were other images 23 of child pornography or at least suggested child pornography 24 which depicted the genitalia of the young girls, but I believe 25 under Perkins, again, these images needed to be shown to the UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 14 of 56 Page ID #:3628 14 10:19AM 1 magistrate judge so she or he -- in this case he -- can make 2 his own independent assessment on whether they were child 3 pornography or lascivious exhibition of the genitalia of young 4 girls. 5 magistrate judge, nor were they even presented to me during the 6 evidentiary hearing. 7 10:19AM all I have is the one Jenny image and the boilerplate standard 9 language. 10 12 for probable cause. MR. RIDDET: May we have just a moment, Your Honor, in response to your question? THE COURT: 14 (Counsel conferred off the record.) 15 MR. BROWN: 17 18 19 20 21 10:20AM And, again, I don't believe that that's sufficient 13 16 10:20AM So for purposes of my analysis on the corrected affidavit, 8 11 10:19AM And as we all know, those images were not shown to the You may. Your Honor, are you going to hear argument on this? THE COURT: Yeah. But I'll give the defense, since it's the defense motions, the first opportunity. MR. RIDDET: Your Honor, I gather this is in the nature of a tentative or is this actually your decision? THE COURT: How do I put it, Mr. Riddet? I wanted 22 to be respectful to both sides, so I wanted to give you both an 23 opportunity, if there's anything you'd like to say, to convince 24 me, tell me where I was wrong. 25 lengthy tentative, so I'm pretty firm in my thought, in my But as you could tell, it was a UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 15 of 56 Page ID #:3629 15 1 analysis on this. 2 weeks to be able to do that in the briefing. 3 to be transparent and honest with both sides. 4 10:21AM 5 MR. RIDDET: 8 9 10:21AM 10:21AM 10 10:21AM I'm just trying We have just a THE COURT: Sure. It's your record. It's important. MR. MILLER: Thank you, Your Honor. And they're both very brief. The first point -- and I'm speaking about the reasonable 11 expectation of privacy in the computer -- is that giving Best 12 Buy permission to search through the computer is just different 13 from giving it to the FBI, law enforcement. 14 consent that I'm aware of for law enforcement to go through 15 that computer, No. 1. 16 10:21AM I appreciate that. I've had several couple of comments about it. 6 7 I've thought about it. And there was no And, No. 2, as I listened to the rationale, what seemed to 17 me the Court was saying was, well, you know when you give this 18 to Best Buy, they're going to turn it over to law enforcement 19 because they're going to find child porn. 20 And I would submit there was no evidence submitted 21 anywhere that Dr. Rettenmaier knew that child porn was on the 22 Seagate hard drive that was submitted to Best Buy. 23 wouldn't have known that it was going to be turned over to law 24 enforcement. 25 So he And with that, I would submit unless the Court has any UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 16 of 56 Page ID #:3630 16 1 questions. 2 10:22AM THE COURT: 3 exactly what I'm finding. 4 had this hard drive. 5 And he knew that this stranger, Best Buy, Geek Squad City, 6 would be looking at his entire hard drive. 7 10:22AM 10:23AM He gave it to a third party, a stranger. Did I think that he consciously was aware that they would be sharing this with the FBI? 9 analysis, it doesn't matter. No. But for purposes of my What matters is he surrendered 10 his hard drive to a complete stranger knowing that it would be 11 looked at, anything on it would be looked at. 12 told if we find anything that is contraband or inappropriate or 13 specifically child pornography, we're turning it over to the 14 FBI. 15 And he was also In light of those facts, Mr. Miller, I don't see how he could have any reasonable expectation of privacy in that. 17 MR. MILLER: I would at least add onto that, that 18 when I read the scope of the waivers, it seemed as though if an 19 improper image were discovered, the image would be turned over 20 to the FBI, not the entire computer would be given to the FBI 21 for them to search as they want. 22 10:23AM What I'm saying is Dr. Rettenmaier 8 16 10:23AM No, it's -- that I wouldn't say is But with that, Your Honor, I will submit. 23 THE COURT: 24 MR. RIDDET: 25 Okay. We have no additional comments, Your Honor. UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 17 of 56 Page ID #:3631 17 10:23AM 10:24AM 10:24AM 1 THE COURT: 2 MR. RIDDET: 3 THE COURT: Mr. Brown. 4 MR. BROWN: Your Honor, let me address Perkins 6 THE COURT: All right. 7 MR. BROWN: Perkins is an unusual case with some 5 10:24AM Thank you very much. first. 8 unusual facts. 9 that case that it doesn't apply here. 10 And it's because of the nature of the facts in The first thing is that Perkins was decided just about a 11 month ago, and Perkins is from 2017, but this search took place 12 in 2012. 13 Ninth Circuit law at the time that the search was conducted in 14 this case. 15 of images that were alleged to be lascivious exhibitions of the 16 genitals to the magistrate judge at the time. 17 wrong to fault Agent Kayle for not doing that in this case 18 under the law. 19 10:24AM Okay. The rule that was announced in Perkins was not There was no requirement that agents provide copies Because of the facts, it's also wrong. So I think it's Agent Kayle, 20 unlike the agent in Perkins, didn't have copies of those 21 images. 22 unusual case in that these images were discovered by a private 23 party, and they were not discovered in the course of, as 24 happened in Perkins, a search of the border. 25 discovered, as has happened in other cases, via a peer-to-peer In fact, the copies resided at Best Buy. This is an They were not UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 18 of 56 Page ID #:3632 18 1 investigation. 2 forced to rely on the description that Agent Riley provided to 3 her. 4 10:25AM 10:25AM As far as the descriptions that were provided in the 5 search warrant, those were absolutely accurate, Your Honor. 6 The description of the Jenny image was exactly the image that 7 we provided to the Court. 8 acted recklessly with respect to that image by not providing it 9 to the Court seems a little bit unfair given the circumstances 10 of the case and given that she described the image accurately. 11 10:25AM Well, that's where I guess I have a disagreement with you. 13 impression that the image is child pornography, and it's not 14 child pornography. The affidavit gives the clear 15 MR. BROWN: But, Your Honor, if I walked into -- 16 THE COURT: So the description in the affidavit is 18 10:26AM THE COURT: And to say that Agent Kayle was -- 12 17 10:25AM She never had copies of the images and was inadequate. It is not child pornography. MR. BROWN: But the description of the image 19 describes the image itself. 20 that determination on his own. 21 it child pornography or not, whether there's a legal dispute 22 about that or not is sort of irrelevant because the facts that 23 would have allowed the magistrate independently to come to that 24 conclusion were accurately provided in the affidavit. 25 The magistrate judge could make And whether Agent Kayle called There are other things about Perkins that help distinguish UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 19 of 56 Page ID #:3633 19 10:26AM 10:26AM 10:27AM 1 that case from the situation here. 2 only failed to provide copies of the images, but the agent left 3 out key facts about how those images had come into his 4 possession and what the Canadian authorities in that case did 5 with the images. 6 The agent said that Perkins had been arrested by Canadian 7 authorities but left out the fact that they dropped the charges 8 because they deemed it, under Canadian law, that the images did 9 not constitute child pornography. 10 Perkins also in that case, the agent redescribed the 11 images suggesting that there was a focal point of the genitals 12 of one of the young women when, in fact, that was not the case. 13 And it was because of that that the Ninth Circuit ruled that 14 given the circumstances of this case, Agent Ensley was required 15 to provide copies of images. 16 10:27AM Perkins doesn't say that in every case we have to provide 17 images to the magistrate judge. 18 circumstances of Perkins, which -- none of which are present 19 here, Perkins can't be applied to the factual situation in this 20 case. 21 about when you have to do it. 22 determination. 23 10:27AM In that case, the agent not And certainly under the I don't think it lays down a clear, bright line rule I think it's a factual And under the facts of this case, Agent Kayle simply 24 couldn't provide the images to the judge. 25 that she could. And she did the best She provided an accurate description of one of UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 20 of 56 Page ID #:3634 20 10:27AM 10:28AM 1 the images. 2 vaginas of young girls. 3 probable cause. THE COURT: 5 bit more indifferent. 6 under the other grounds for child pornography, maybe the 7 detailed written description would be sufficient. 8 you're going under the area for lascivious exhibition of 9 genitalia as the child pornography, then you have to give a I read Perkins to say if you're going But if very good description of it that would satisfy that, but that 11 what you really should do is attach the image and so the 12 magistrate can do his or her own independent review. But, Mr. Brown, I think it's important, that is, okay, the 14 second step of the Franks analysis, I have to then see, and I 15 was provided the image. 16 is not child pornography. 17 lascivious exhibition. And, again, my finding is that image It's not sadistic, and it's not And so then I have to determine based on that as well as 19 the standard boilerplate is that sufficient for probable cause? 20 And I think Perkins and other Ninth Circuit authority says that 21 is not sufficient for probable cause. 22 10:29AM I read Perkins to say something a little 10 18 10:29AM And that was enough to provide 4 13 10:28AM She also described other images that displayed the MR. BROWN: Did Your Honor -- is Your Honor making 23 the finding that the written description of the image in the 24 search warrant is inaccurate? 25 THE COURT: I'm saying that it does not describe UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 21 of 56 Page ID #:3635 21 1 10:29AM child pornography. 2 MR. BROWN: I'm asking you -- 3 THE COURT: It describes -- and then when I see the 4 image, it's child erotica. 5 not intentionally misleading, but she was recklessly so. 6 10:29AM 7 the question properly. 8 question. Okay. 10 MR. BROWN: If -- when you looked at the image, the Jenny image -- 12 THE COURT: Yes. 13 MR. BROWN: -- and compared it to the description of the Jenny image that was in the search warrant -- 15 THE COURT: Right. 16 MR. BROWN: -- did the description accurately 17 capture what was contained in that image? 18 and apart -- 19 THE COURT: And this is separate I hear what you're saying. It gave a 20 misleading description because the affidavit said it was child 21 pornography, and it's not. 22 parroted what Agent Riley had said in the EC. 23 is not child pornography. 24 10:30AM I'm asking a slightly different THE COURT: 14 10:30AM Well, I'm sorry, I may not have asked 9 11 10:30AM MR. BROWN: And I'm saying that the agent was 25 And then it just gave the -- it And, again, that That description is insufficient. So you keep just trying to say, "Hey, well, there's words, the specific words describing the image, and that's accurate." UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 22 of 56 Page ID #:3636 22 1 And I'm saying, "Yeah, that's accurate, but that's 2 incomplete because the affidavit clearly stated that it was 3 child pornography." 4 10:31AM 10:31AM 10:31AM 10:32AM MR. BROWN: 5 conclusion. 6 this happens in search warrants all the time. 7 we tell the judge we think this is probable cause, and the 8 judge says, "No, I don't think so." 9 disregard on my part. 10 THE COURT: That's an allegation that's being made by the -- I disagree. We come in and That's not reckless It would be improper, 11 inappropriate for the magistrate judge to give a warrant for a 12 person's entire home based on child erotica. 13 clear that child erotica by itself is not child pornography, 14 and it's not sufficient to search a person's home. 15 MR. BROWN: The law is pretty Separate -- that's a separate question 16 from the one about whether the agent was reckless with respect 17 to the description of the image. 18 Court is wrong. 19 that cannot be by definition recklessness with regard to the 20 truth. 21 magistrate judge to make a determination. And I think -- I think the If the agent accurately describes the image, An accurate description of the image allows the 22 10:32AM But, Your Honor, that's a legal THE COURT: You keep trying to ignore the words that 23 it was child pornography. And that was a conclusion that the 24 agent made. 25 it and ignore it from the description. And you keep trying to take that away and remove And I'm not willing to UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 23 of 56 Page ID #:3637 23 1 2 10:32AM 10:32AM 4 believe what the agent said? 5 THE COURT: No. I'm saying what the magistrate 6 reasonably believed based on the wording of the affidavit 7 saying it was child pornography and here's a -- what I will 8 call an incomplete description of it. 9 accurate, but more had to be said. 10 13 14 10:33AM Well, but couldn't the magistrate make that determination, or are you assuming the magistrate had to 12 10:33AM MR. BROWN: 3 11 10:33AM do that. MR. BROWN: What was said was What more could have been said at that point, Your Honor? THE COURT: It's merely child erotica. It's an image of child erotica. MR. BROWN: Your Honor, do you understand that I 15 also believe that's child pornography? Am I being reckless in 16 presenting that case to the Court and arguing for that? 17 THE COURT: Yes. 18 MR. BROWN: I want to take a stab -- 19 THE COURT: I just don't think that's a 20 reasonable -- the Fourth Amendment is pretty powerful. I 21 realize there are a lot of exceptions to it. 22 pretty powerful principle of our country. 23 to search someone's home, you need to be accurate, and you need 24 to have a good faith reasoned informed belief on what you found 25 and what you're saying is probable cause. But it is a And if you're going UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 24 of 56 Page ID #:3638 24 1 10:34AM 2 have child pornography is a very significant representation 3 that has meaning. 4 and tells me there is drug contraband here, that there is child 5 pornography here, I want to give that weight. 6 that weight. 7 10:34AM And to me, representing to the magistrate judge that you 8 that there isn't child pornography, it's just child erotica, 9 that has a major impact on my decision whether I'm going to 10 sign off on a warrant. MR. BROWN: understand what the Court expected Agent Kayle to do under the 13 circumstances of the case and to -- you know, given the fact 14 that the government was not in possession of these images, this 15 case is wholly different from Perkins. THE COURT: It should have got -- somehow, some way, 17 it should have got its hands on that image before it went into 18 court. 19 it's child pornography. 20 this is all we got. 21 found on the unallocated space. 22 10:35AM I'm just not -- I guess I don't 12 16 10:35AM I have to give But if they're telling me something that's not true, i.e., 11 10:34AM When a seasoned agent comes into my court And what I would expect the agent to do is not say that I would expect the agent to say that We have one image of child erotica that we That's what I -- you asked me what do I expect the agent 23 to say? 24 child erotica on the unallocated space." 25 I expect the agent to say, "We found one image of And any reasonable magistrate judge would say, "That ain't UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 25 of 56 Page ID #:3639 25 1 good enough. 2 3 10:35AM 10:36AM 10:37AM I want to make an analogy here to the drug context. THE COURT: All right. 5 MR. BROWN: All right. There are numerous times 6 when the government submits search warrants based upon 7 conversations only, intercepted conversations, based upon 8 surveillance and observations about what's occurring when the 9 government does not have evidence that drug transactions have 10 been taking place, the government surmises that from the 11 circumstantial evidence. What I mean is there are lots of times when we ask for 13 search warrants of people's homes not because we had a seizure 14 of methamphetamine or heroin or cocaine or something like that, 15 but because we see things that suggest that evidence of a crime 16 is going to -- is going to be found at that place, at that home 17 or that other location. 18 10:36AM MR. BROWN: 4 12 10:36AM You can't search his home." Even given the Court's ruling that this is not child 19 pornography, that it's child erotica, you still have on 20 somebody's computer multiple images of young girls' vaginas and 21 an image of a girl on her hands and knees naked with a choker 22 collar around her neck. 23 there are going to be other images of child pornography on the 24 computer. 25 THE COURT: That's probable cause to believe that Well, wait -- UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 26 of 56 Page ID #:3640 26 1 MR. BROWN: 2 search that computer, you're going to find child pornography 3 there. 4 10:37AM 5 THE COURT: 7 10:38AM THE COURT: -- you disagree with that. The other -- I think Perkins makes clear that I should not be -- I cannot consider that because you have to give a more accurate 11 meaningful description of those other images if they satisfy 12 any of the grounds of child pornography. But Perkins itself, there was more than one image of child 14 erotica. 15 Ninth Circuit said that is not good enough for probable cause 16 under the second step of the Franks analysis. 17 10:38AM And the other images that were 10 13 10:37AM MR. BROWN: described? 8 9 If all you have is one image of child erotica, I'm saying that isn't good enough -- 6 10:37AM There's a fair probability that if you There was at least two, if not more, images. And the So what you're basically telling me to do is I should 18 disregard not only Perkins but all those other cases that have 19 said child erotica is not enough to show probable cause that 20 there's child pornography. 21 or not, many of the cases suggest if all the individual is 22 looking at is child erotica, he or she is making a conscious 23 decision, I'm not going to go to that next level of looking at 24 child pornography. 25 MR. BROWN: In fact, whether you agree with it But the difference between the UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 27 of 56 Page ID #:3641 27 1 circumstances that you're describing in this case is that in 2 addition to a picture that shows a sexual interest in children, 3 there are also other pictures of young girls' genitalia. 4 10:38AM 10:39AM THE COURT: 5 sufficient description of that to determine whether it is child 6 pornography or not. 7 under the category of lascivious exhibition of genitalia, and 8 Perkins says the state of the law is you really need to attach 9 the image or you need to see that image, and you haven't 10 affidavit that this Jenny image is child erotica but it is part 13 of a series of known child pornography or that this is a known 14 victim of child pornography, that might be enough to persuade 15 me. 16 me to sign off on the warrant. Maybe not other judges, but it would be enough to persuade But there was nothing in the electronic communication that 18 indicated this was part of a series of well-known child 19 pornography, nor did the affidavit say anything that this image 20 of child erotica was part of a video that is child pornography 21 and describe those other scenes, then I'd say that would be 22 good enough. 23 10:40AM I would even say academically, if you had said in the 12 17 10:40AM And, in fact, it sounds like you're going presented me any other images other than the Jenny image. 11 10:39AM But I don't have -- I don't have a But, again, the Franks analysis that I need to do as 24 articulated through Perkins is I have to say, okay, I have to 25 correct the affidavit with what important information was left UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 28 of 56 Page ID #:3642 28 10:40AM 1 out. 2 maybe there's other information that would be beneficial and I 3 can -- that the government should have included. 4 work that way. 5 government left out that hurt the defendant, not what the 6 government left out that helps the defendant, if you follow me. 7 10:41AM 10:41AM I can only -- I can only consider what the MR. BROWN: I do. Here's one request that I would make, Your Honor. 9 final order, to go back through the Perkins case and look at it I would like the Court, before it issues its 10 again carefully in light of the arguments that I've made today 11 because we did not get a chance to brief it -- 12 THE COURT: I have it here. 13 MR. BROWN: But -- 14 THE COURT: -- and I've looked -- I mean, I've 15 looked at it. I've read it probably about five or six times. MR. BROWN: Well, we didn't -- we didn't get a 17 chance to brief it. 18 I'm ultimately trying to get to is the recklessness in Perkins 19 had to do with the fact that there was an agent who was told 20 that a case was dropped in Canada against Mr. Perkins, that the 21 law in Canada and the United States with respect to what 22 constitutes child pornography was more or less the same, and 23 they decided not to prosecute him in Canada. 24 10:42AM It doesn't 8 16 10:41AM I can't start trying to speculate or figure out, well, 25 And I understand -- this is the point that That agent had the very images that were contested in his hands and changed the description of the images in the search UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 29 of 56 Page ID #:3643 29 10:42AM 10:42AM 1 warrant. 2 you're going to start misrepresenting things to the Court, you 3 know, under these circumstances, you got to attach the images. 4 If you have them in your hands, you got to attach the images. 5 And the reason it was reckless in that case was because the agent was misrepresenting not only the facts surrounding 7 the criminal investigation that took place in Canada, but the 8 very facts about the picture that made it -- allowed the 9 Ninth Circuit to determine whether or not it was a lascivious 10 10:43AM display of the genitals. This case is very different. This is a case where 12 Agent Riley was visiting a private corporation where that's 13 where the images were being held. 14 And when, in fact, they tried to find the images later back at 15 the FBI office, they were unable to access the images. 16 10:43AM If 6 11 10:42AM And the Ninth Circuit said that's reckless. She didn't seize the images. Agent Kayle never had copies of the images in her hand. 17 She wasn't being reckless. 18 described to her. 19 what the image looks like. 20 to believe that it was child pornography because, in her 21 opinion, it was child pornography. 22 opinion, that is child pornography. 23 difference about the law. 24 to the facts of the picture. 25 She was relying on what Agent Riley And what Agent Riley described actually is I understand that she led the Court In the government's But that's a reasonable That's not recklessness with respect And why this is so important, because the -- if the Court UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 30 of 56 Page ID #:3644 30 10:43AM 1 finds that there was a facial issue with the description and 2 that that wasn't child pornography, I can live with that, but 3 then I get to argue that Agent Kayle and the government acted 4 in good faith. 5 fine, it's not child pornography on its face, but that doesn't 6 mean that Agent Kayle acted recklessly. 7 10:44AM 10:44AM 10:44AM 10:44AM So if you disagree that it's child pornography, If you say she acted recklessly, which she didn't, then 8 the government can't argue good faith. 9 make a good-faith argument in this case. And I would like to I don't think that 10 anything Agent Kayle did was wrong. 11 She relied on descriptions that were provided to her by the 12 person who actually saw them and then took those descriptions 13 and tried to give the best presentation of them that she could 14 to the judge. 15 She got a search warrant. The fact that she said it was child pornography was a 16 legal conclusion that the judge could have disregarded if he 17 wanted to. 18 they believe that it's child pornography as well. 19 recklessness, Your Honor, that's being a good agent, and that's 20 getting as much of the facts in front of the judge as possible. But, I mean, she has AUSAs who are telling her that That's not 21 If Agent Kayle had not described the image or had added 22 features to the image that suggested it was child pornography 23 in a way that the actual copy of the image belied, that would 24 be recklessness. 25 that's not what happened in this case. That would be what happened in Perkins. UNITED STATES DISTRICT COURT But Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 31 of 56 Page ID #:3645 31 1 10:45AM 2 government the opportunity to argue that we got the search 3 warrant in good faith. 4 do in this case. 5 presented them to the magistrate, said, "It's your call." 6 got a search warrant for both the computer and for the house. 7 That's what you're supposed to do. 8 9 10:45AM 10:45AM 10:46AM 10:46AM And because it wasn't reckless, I think that gives the I mean, we did what you're supposed to We got the best facts that we could. We We And in doing that, Agent Kayle didn't misrepresent any facts. She made a legal argument that the government endorsed 10 that this was child pornography. 11 THE COURT: That's not recklessness. Well, again, you kind of isolate aspects 12 of the affidavit instead of taking them together. 13 specifically, Mr. Brown, is you failed to acknowledge that it 14 was represented to the magistrate judge that it was child 15 pornography. 16 disclosed to the magistrate judge that it was on unallocated 17 space. 18 conviction, but that has evidentiary significance. 19 relevant to a probable cause. 20 What I mean You failed to acknowledge that it wasn't And I realize this is a search warrant, it's not a And it is And then Agent Kayle is responsible for everything 21 Agent Riley knows, and a magistrate judge would want to know 22 that there were three searches of the hard drive without a 23 warrant and one attempted search of the hard drive without a 24 warrant. 25 is material because the affidavit itself says there were no A magistrate judge would want to know that. UNITED STATES DISTRICT COURT And it Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 32 of 56 Page ID #:3646 32 1 other efforts or attempts to obtain child pornography, and that 2 wasn't true. 3 4 10:47AM 10:47AM If Your Honor would indulge me for just another couple minutes on the last two issues about the other 7 searches. Your Honor asserts that it's material to the decision about probable cause, but it's unclear -- and I think this is, 10 you know, from our argument. 11 does it have to a determination about whether there's a fair 12 probability that evidence would be found either on the computer 13 or at the house. 14 searches has no connection whatsoever to that question. The question is what relevance The fact that the agents attempted other 15 THE COURT: No, it -- 16 MR. BROWN: It may be something that a magistrate 17 would want to know just out of fairness, but it has nothing to 18 do with the question of whether there was probable cause to 19 conduct these searches. 20 THE COURT: No, it gives me the impression as the 21 magistrate judge that they only found one image of child 22 erotica, and yet they tried really darn hard to find other 23 stuff. 24 10:48AM MR. BROWN: 6 9 10:47AM a reasonable magistrate could say that's probable cause. 5 8 10:47AM So when I take all of that together, I just don't see how 25 That's what gives me the impression. Again, maybe we have a little bit of a disagreement is a person's home is sacred to me. And I'm not trying to get on my UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 33 of 56 Page ID #:3647 33 1 high horse, but, you know, close is not good enough for me when 2 you're asking to search someone's home. 3 10:48AM 10:48AM 10:48AM 10:49AM Your Honor, if -- what the Court is 4 supposed to do when it finds a reckless representation or 5 omission in the search warrant is add the actual facts back 6 into the search warrant. 7 with respect to the other searches, then what the Court has to 8 now consider is the fact that there was a search that was 9 attempted back at the FBI office on January 6; it was And if the Court wants to do that 10 unsuccessful because the data was underlined. 11 to go back and look at the search that Agent Riley conducted on 12 February 3rd. 13 evidence of the fact that those images certainly are child 14 pornography. 15 And she saw other images. THE COURT: And then it has The Court has I think that's a misstatement of the 16 law. 17 clear, I cannot -- cannot go back and put in evidence that the 18 government should have put in -- 19 MR. BROWN: No, no -- 20 THE COURT: -- that is beneficial to the government 21 22 23 10:49AM MR. BROWN: And if I'm wrong on that -- I think the law is pretty and hurtful to the defense. MR. BROWN: I'm saying if you believe there was an omission, then the omission has to be corrected. 24 THE COURT: Right. 25 MR. BROWN: Okay. UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 34 of 56 Page ID #:3648 34 1 10:49AM 10:49AM 10:50AM 10:50AM An omission, how you correct it, I 2 believe, under the analysis is there were three searches done 3 of the hard drive without a warrant, and there was one 4 attempted search of the hard drive without a warrant. 5 MR. BROWN: Right. 6 THE COURT: And I can walk you through those three. 7 MR. BROWN: And none of those -- why would that be 8 relevant under the Court's first ruling, the Best Buy motion, 9 given that there was no expectation of privacy? Wouldn't the 10 magistrate judge have come to the same conclusion as this Court 11 and said, "Well" -- 12 10:50AM THE COURT: THE COURT: Arguably. But the government obviously 13 thought there was an expectation of privacy. And as a 14 magistrate judge, I would want to know, okay, did you search 15 and did you think there was some expectation of privacy? 16 Whether I agree with it or not, I would want to know that. 17 That's relevant. 18 But the point -- the more important point to me is in the 19 affidavits, it says it's important relevant information whether 20 we made other attempts, other searches to try to get this 21 information. 22 you is it's material and it's important because you say it's 23 important and material. That is the important fact. So my response to 24 MR. BROWN: No. The reason -- 25 THE COURT: In the affidavit I can quote you the UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 35 of 56 Page ID #:3649 35 1 language on what -- what you said. 2 10:51AM 10:51AM MR. BROWN: 3 in there as well. 4 That's why it's there. 5 between the magistrates and our office to comply with CDT when 6 CDT came down in 2010. 7 we're not going to the District of Nevada to get one search 8 warrant, that one gets denied, and then we come back here to 9 the Central District and get another search warrant so that That's why it's there, to show that 11 happened in this case, Your Honor. And there's nothing like that that And, Your Honor, I know you have another hearing coming up -- 14 THE COURT: That's all right. 15 MR. BROWN: It's the unallocated space issue, the This is important. 16 Court hasn't indicated any factual sort of -- any of the facts 17 that led the Court to the conclusion that Agent Kayle 18 recklessly failed to use the term "unallocated space" in the 19 search warrant. 20 As you know, the government has argued that Agent -- first 21 of all, that there's no evidence that the -- that the stuff was 22 in unallocated space in the sense that the defendant argues. 23 10:52AM It was something that was negotiated we're not forum shopping. 13 10:51AM It's in there because of the CDT case. 10 12 10:51AM I know the language, and I know why it's THE COURT: I mean, there was, I think, a lot -- a 24 lot of evidence that Agent Kayle realized it was on unallocated 25 space, but the record will speak for itself. But the one that UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 36 of 56 Page ID #:3650 36 1 just jumps out at me is the one where she indicates to her 2 supervisor the U.S. Attorney is not going to charge on this. 3 4 10:52AM 10:52AM MR. BROWN: 10:53AM 5 THE COURT: That's one of the powerful facts. 6 MR. BROWN: I'm actually astonished, Your Honor, 7 because of all of the facts in this case, that seemed to be the 8 one that got bludgeoned to death by both the testimony of 9 Agent Kayle and her supervisor who clearly testified that, "A," 10 that was wrong; "B," that had nothing to do whatsoever with 11 Agent Kayle being concerned about getting a search warrant. 12 All it showed was that Agent Kayle thought maybe we would have 13 to take it to the state as opposed to a federal agency. THE COURT: Well, you know, the record is what it 15 is. 16 but I found that quite significant, that you're just adopting 17 your version that it's an innocuous statement. 18 they have a much different characterization of that statement, 19 and I, candidly, adopt their characterization of it, that it 20 was very significant that that was on unallocated space and 21 that was not disclosed to the magistrate judge, and it should 22 have been. 23 government's part, but it was reckless. 24 10:53AM I thought it was fairly -- 14 10:52AM That's what convinced the Court? 25 You find -- that's your interpretation of what was said, The defense, I'm not saying it was intentional deception on the MR. BROWN: It could not have been reckless if the defendant's own expert couldn't tell the Court that it was in UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 37 of 56 Page ID #:3651 37 1 unallocated space. 2 examined the thing, and she had no idea where it was. 3 10:54AM THE COURT: 5 understood there was major significance, whether you believe it 6 or not, that they understood it was of significance and 7 importance whether the image was on unallocated space or 8 allocated space, and -- 10:55AM It's the government, Agent Riley and Agent Kayle, MR. BROWN: And Agent Kayle described exactly the 10 significance of the material -- the whole point of the fact 11 that it was in unallocated space from the defendant's point of 12 view -THE COURT: It didn't describe it in the affidavit. 14 Described the significance in her e-mail communication with her 15 supervisor, appears to have described the significance before 16 the grand jury, but did not even disclose the fact that it was 17 on unallocated space to the magistrate judge. 18 10:55AM We're arguing past one another now, Mr. Brown. 13 10:54AM And she was the one who 4 9 10:54AM She didn't know. MR. BROWN: Right. And as far as the grand jury 19 testimony goes, Your Honor is aware that there are different 20 ways of using the term "unallocated space." 21 art. 22 deleted in that section of the hard drive that it no longer has 23 the pointers from the file table. 24 THE COURT: 25 Sometimes it means inaccessible. It's a term of Sometimes it means And I was using the version that Agent Riley and Agent Kayle was using. UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 38 of 56 Page ID #:3652 38 1 2 MR. BROWN: means; right? 3 10:55AM 10:55AM 10:56AM 10:56AM THE COURT: That means that it was on unallocated 4 space. 5 the defendant, the suspect, the computer user looked at it, was 6 aware of it and deleted it, where you don't have those types of 7 problems, as I understand it, from a technology standpoint if 8 it's on allocated space. And you have a lot of problems determining when or if 9 MR. BROWN: But not only was that -- 10 THE COURT: We're arguing over a point -- you're 11 saying this point doesn't matter. 12 why did the agent and Agent Riley talk about it? 13 out to lunch, why are they making a big deal of it? 14 they making an issue of it? 15 MR. BROWN: Well, if it doesn't matter, If I'm so far Why are Because it's an important fact to know 16 when you're going to do a forensic analysis on a computer, and 17 it's an important fact to know for charging a case. 18 not such an important fact to know when you're seeking to prove 19 that there's probable cause that evidence will be found on a 20 computer or at the house. 21 THE COURT: Okay. 22 MR. BROWN: The government doesn't -- 23 THE COURT: That's your distinction. 24 10:56AM And that means inaccessible by normal 25 It's That's fine. I just disagree. MR. BROWN: No, but the point is that the Court is UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 39 of 56 Page ID #:3653 39 10:56AM 10:57AM 10:57AM 1 buying into the theory that we -- the government, at the time 2 it applied for the search warrant, had to show that the 3 defendant knew that the stuff was on his computer. 4 have to show that. 5 THE COURT: that. 7 found on unallocated space. 8 space. 9 was, and they needed to share that with the magistrate, because 10 their own words, actions show that that has major significance. 11 And you're telling me, "Well, Judge, what they said, they I'm saying what they had to disclose was that it was They knew it was on unallocated They had their understanding of what unallocated space 12 didn't mean it that way." 13 they said in its ordinary plain meaning. 14 kind of special computer science definition to what they're 15 saying. 16 if it's on unallocated space. 17 to charge on it." 19 I'm not giving any The U.S. Attorney is not going Your Honor, let me just have a minute to talk to counsel. 20 THE COURT: Okay. Mr. Miller, Mr. Riddet, do you have a rebuttal? 22 record, sir. 23 eyes on appeal. 24 it. 25 Well, I'm just interpreting what They're saying that, "Hey, they're not going to charge MR. BROWN: 21 10:58AM I'm not saying 6 18 10:57AM I'm not saying that. We don't It's your And my sense is that this is going to see other So I want to give you a chance to respond to MR. RIDDET: I don't think so, Your Honor. UNITED STATES DISTRICT COURT I think Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 40 of 56 Page ID #:3654 40 10:58AM 10:58AM 10:59AM 1 we're happy with the way it is now. 2 a question that you'd like us to address, I think the colloquy, 3 which we just witnessed, I don't think needs any further 4 comment from us. 5 again, because it's your record, so I know this must sound like 7 a self-serving question to you, but you have a very different 8 characterization of the factual evidence about whether it was 9 on unallocated space or not and the significance of it? 10 And I have interpreted your argument to say this is a very 11 significant fact, that the government realized that there are 12 problems getting a conviction and even convincing the U.S. 13 Attorney's Office to charge if it's on unallocated space. 14 And I -- that's how I interpreted your argument. 15 interpreted that evidence. 16 am? That's how I Do you interpret it the way that I Is that what you intend to persuade me -MR. RIDDET: Yes. And I think there's one thing 18 that Mr. Brown has not recalled. 19 when I was examining the affiant about this e-mail, which I 20 think does have tremendous significance when she says the 21 U.S. Attorney's Office won't charge on carved images, is the 22 way she put it, I think that is highly significant when you're 23 looking at whether she was intentional or reckless. 24 10:59AM And I appreciate that, but am I -- 6 17 10:59AM THE COURT: And unless Your Honor has 25 In the evidentiary hearing, When I was cross-examining her about that, she also said on her own, without me asking, and that would raise doubts in UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 41 of 56 Page ID #:3655 41 10:59AM 11:00AM 11:00AM 1 her mind whether or not she could even get a warrant from the 2 U.S. Attorneys. 3 approve a warrant. 4 the transcript. 5 11:01AM They also might not even She said that on her own. It's right in So that shows what's going on in her mind. MR. BROWN: But all of this is -- is completely 6 changed. 7 e-mail, she didn't sign the search warrant or even draft the 8 search warrant until later after talking with the AUSA who 9 disabused her of that notion. 10 Whatever she believed at the time she sent that So it's -- to me, I find it very hard to understand how a 11 statement that Agent Kayle made weeks before she drafted and 12 submitted the affidavit somehow could make her reckless with 13 respect to information that she knew at the time was false, 14 that the U.S. Attorney's Office would seek a search warrant 15 even though we were going to have to carve for those images. 16 That's what she knew at the time that she was writing the 17 search warrant. 18 11:00AM They may not charge. And, Your Honor, I jus -- I want to say for the record 19 that I think that with respect to each of the things the Court 20 has identified here, the Jenny image, the omission of the fact 21 that the -- or the supposed fact that the child pornography 22 images were found in unallocated space, and the statement in 23 the search warrant that no other searches had been conducted, I 24 do not believe and -- my co-counsel and I do not believe that 25 the agent acted recklessly with respect to any of those UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 42 of 56 Page ID #:3656 42 1 11:01AM 11:01AM 11:02AM 2 I think that the Jenny image is child pornography. 3 have a legal disagreement about that, but that doesn't make it 4 reckless when the agent accurately describes what the image is. 5 I think that the evidence that the Court is relying on to claim that Agent Kayle was reckless with respect to a 7 representation about unallocated space just is belied by the 8 facts of the case. 9 three weeks before drafting the search warrant, but couldn't She may have been concerned about that 10 have been concerned about it when the AUSA decided to take the 11 case. 12 She also disclosed the key facts in the case which were 13 that the information had to be carved, had to be recovered by 14 data recovery services. 15 that this defendant may not have had access to that data on his 16 computer. That conveys the material information That's the important thing about unallocated space. Call 18 it whatever it is. 19 point of view is that he couldn't have had access to it at his 20 house without specialized tools. 21 in the search warrant by the fact that the hard drive had to 22 have the data recovery services performed on it by specialized 23 tools at the Best Buy facility. 24 11:02AM We can 6 17 11:02AM statements. 25 The important thing from the defendant's That was accurately conveyed And as far as the other searches are concerned, I don't -I agree that was a mistake, and we've conceded that from the UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 43 of 56 Page ID #:3657 43 11:02AM 1 beginning. 2 was an omission that was made under the circumstances of 3 drafting the search warrant. 4 Court is aware, was changed by the AUSA during the revision 5 process. 6 11:03AM 11:03AM I think Agent Kayle just overlooked it. But in any event, it couldn't have been -THE COURT: -- on that point -- 8 MR. BROWN: Yeah. 9 THE COURT: -- that's Agent Riley's bad, not 10 Agent Kayle. 11 from her, she didn't know about all those searches. Agent Kayle didn't know -- from what I could tell 12 MR. BROWN: And then -- 13 THE COURT: But the government's responsible for Agent Riley as well. 15 MR. BROWN: I understand that. 16 THE COURT: Agent Riley knew it because she did it. 17 MR. BROWN: But it is important to allocate the 18 blame where the blame goes for different agents in their 19 careers. 20 Court has clarified that. 21 11:03AM That particular statement, as the 7 14 11:03AM I think that was not a reckless error, I think that And so I think it's important that, you know, the Thank you. But with respect to the last issue as well, I just don't 22 understand how the Court can claim that that was a material 23 statement in the search warrant in light of the ruling that the 24 Court made on the Best Buy motion. If there's no expectation 25 of privacy, it can't be material. So I'm not sure where we go. UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 44 of 56 Page ID #:3658 44 1 But -- 2 11:04AM 11:04AM THE COURT: 3 first and foremost is it shows that after all these searches, 4 this is all they found? 5 me -- 11:04AM MR. BROWN: Well -- 7 THE COURT: -- if I'm the magistrate judge to 8 determine whether I'm going to sign off on a search of a 9 person's entire home. 10 MR. BROWN: I'm not sure that that's a fair way to 11 represent it because the Court knows that that's not all we 12 found. And so -THE COURT: But that's -- I know. But you know the 14 analysis that I have to do under the second step of the Franks 15 is, okay, I have to correct the affidavit. 16 things that the government left out that would be favorable to 17 the government and hurtful to the defense. 18 corrected affidavit put in what the government left out that 19 would be helpful to the defense. 20 MR. BROWN: 21 23 24 25 I can't put in I can only in the I'm not -- I don't know what case says that, but -- 22 11:04AM That has material significance to 6 13 11:04AM I guess, a lot of different reasons, but THE COURT: Just look at the way the analysis is MR. BROWN: So I just wanted to make it clear for done. the record, Your Honor, you know, from the government's point UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 45 of 56 Page ID #:3659 45 11:05AM 1 of view, the charges of recklessness against Kayle, I think, 2 are not supported by the record. 3 images, child pornography, and that Agent Kayle accurately 4 described what she could have known at the time about the 5 location of those files on the defendant's hard drive. 6 you, Your Honor. 7 THE COURT: 8 MR. MILLER: 9 11:05AM 11:05AM 11:06AM All right. Thank I appreciate your argument. Your Honor, I just want to make sure Your Honor is clear from our perspective, we've addressed every 10 single one of those points in our brief, in our reply brief. 11 If the Court would like us to go back over them now as he's 12 raising them, I'm happy to do it; however, we agree with the 13 Court. We think the Court read the briefs and is getting it 14 right. And so we're not intending to back off at any point. 15 But I can address any point the Court would like right now. 16 just don't see the need at this point. 17 11:06AM And we believe that the Jenny THE COURT: I Well, I would like you to consult with 18 Mr. Riddet, just take a moment. 19 you could just summarize your response to that. 20 would be helpful for the record because Mr. Brown and I butted 21 heads in a respectful disagreement on these points that I 22 found, that the affidavit had false and misleading information 23 or there was important information that was left out and my 24 finding that it was reckless. 25 And just for the record, if I think it And the information that I focused on is, one, the Jenny UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 46 of 56 Page ID #:3660 46 11:06AM 1 image; two, the fact that the image was found on unallocated 2 space; and, three, that there were three searches done without 3 a warrant and one attempted search without a warrant. 4 think that information was important and the magistrate judge 5 should have been told it, and had the magistrate judge been 6 told it and with the corrected affidavit, there isn't probable 7 cause. 8 9 11:07AM 11:07AM 11:08AM And I apologize if I'm rambling a bit, but, Mr. Brown, you know, I sensed he is critical of my analysis on whether there 10 is probable cause. 11 significant is when I do the second step of the Franks 12 analysis, Mr. Miller, I believe the law is clear that I have to 13 look at the information the government left out that is 14 obviously favorable to the defendant. 15 that exercise, I didn't believe that I am entitled to start 16 searching the record or asking for the record to be 17 supplemented, give me information that would be helpful to a 18 finding of probable cause. 19 11:08AM And I And his last point I thought was But when I go through Specifically, when I'm doing the corrected affidavit, if I 20 am aware or if it's in the record that Jenny is a well-known 21 child pornography video, and although the government in the 22 affidavit only focused on the one image, which is child 23 erotica, had the government said, "Well, we have one still that 24 we found and -- but this still is part of a very disturbing 25 child pornography video," and if you told the magistrate judge, UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 47 of 56 Page ID #:3661 47 11:09AM 1 "Okay, it's one image, but it's an image that's part of a very 2 disturbing series that's well-known child pornography, and 3 we'll describe the other contents of the video," so a 4 magistrate judge could say, "Well, you know, I know this image 5 alone isn't sufficient for probable cause, but this image is 6 part of a series of a video, and there is a fair probability, 7 if you have one image of a video, then you might have other 8 images of the video, which we know is child pornography." 9 11:09AM 11:10AM 11:10AM 11:10AM Please tell me if I'm not being clear, but I don't think I 10 can do that analysis. I don't believe the law says when I'm 11 doing the Franks analysis I can start searching the record to 12 say, "Hey, government, you should have said this. 13 said this, it would have supported probable cause, even though 14 that's an undeniable fact that this image is part of a very 15 troubling well-known child pornographic video." 16 me? And if you Are you with 17 MR. MILLER: Yes, Your Honor. 18 MR. RIDDET: We're with you. 19 MR. MILLER: Your Honor, we completely agree with Thank you, Your Honor. 20 that. And you got to remember that the reason that we're at 21 this stage of the analysis is because there's false statements 22 in the affidavit. 23 and false statements in it, so that's when the corrections 24 start applying. 25 go back and say, "Well, they could have added this in, and they The government has made reckless omissions And the government is not entitled to have you UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 48 of 56 Page ID #:3662 48 11:10AM 11:11AM 1 could have added that in." 2 warrant, and it's inconsistent with the procedural process of 3 where we're at, which is a problematic warrant in the first 4 place or a problematic search warrant affidavit. 5 11:11AM 11:12AM But if I could just start back and go to the Jenny image. 6 The Jenny image description is patently misleading, as the 7 Court said, because it described it as child porn. 8 way that the magistrate can make an accurate decision on 9 whether this is child porn or not with a very general There's no 10 description and the conclusion that it's child porn, No. 1. 11 And I think -- and I put in the reply brief that is -- that is 12 deceitful. 13 11:11AM That undermines the purpose of the That is misrepresenting the image. But even the description was wrong because it suggested 14 that it disclosed genitalia, and you wouldn't know that it 15 didn't disclose genitalia unless you actually looked at the 16 image. 17 strongly suggested that this was an example of an image 18 depicting genitalia. But the wording in the search warrant affidavit It was -- it was false in that way also. 19 As far as unallocated space go, I think the government's 20 making up the distinction between strict or narrow unallocated 21 space and broad unallocated space. 22 it's deleted, it's deleted. 23 for case law that talked about this different types of 24 unallocated space and found none. 25 Our expert simply said if I put in the reply brief we looked Unallocated space is a thing, and it's a governing thing UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 49 of 56 Page ID #:3663 49 11:12AM 1 in the Ninth Circuit when you have got United States vs. Flyer 2 and all of the cases out there, including the Supreme Court 3 case in Jacobson, that say cases that discuss what is 4 sufficient for a conviction can be relevant to probable cause. 5 It's just part and parcel of the legal framework under which 6 probable cause has to be determined. 7 11:12AM 11:13AM 8 is any evidence of other images, certainly not under Perkins, 9 that are sufficient to justify a search warrant affidavit. I think that the evidence is absolutely uncredible that there 11 were other images, because Agent Riley first says -- when 12 contacted by an agent so that she's going to have to meet with 13 Agent Scally, she says, "I don't know about any other images." 14 And then she meets with Agent Scally and says, "Well, maybe 15 they were cut and pasted from another -- another search warrant 16 affidavit." And then when she's looking at her own notes, she says, 18 "Oh, those were from January 6." 19 hard to see that she saw anything, other than potentially on 20 February 3rd, which was an illegal search and which cannot be 21 used as -- to support probable cause. 22 11:13AM But 10 17 11:13AM On the question of no other images, I don't believe there It's -- it's really, really So even if the Court could rely on the images, even though 23 they're so vague that the Court can't rely on them under 24 Perkins, the Court still couldn't because they would be the 25 fruit of an illegal search. UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 50 of 56 Page ID #:3664 50 1 11:13AM 2 going on here, it simply doesn't. 3 that data recovery can be from allocated space and unallocated 4 space so it doesn't further the ball at all. 5 11:15AM I think that 7 of the evidence; we just disagree. THE COURT: And thank you, Your Honor. Appreciate it. I'm going to go ahead and make my tentative the final 10 orders of the Court. 11 evidence on the hard drive is in. 12 house is out. 13 11:15AM So I think that the Court has got it right. Mr. Brown gave a very long and impassioned speech for his view 9 11:14AM We explained in our brief 6 8 11:14AM The suggestion that data recovery somehow explains what's As I understand it, that means, then, the The evidence seized from the And I know we have a June 6 trial date, and I can go to 14 trial that date, I booked the time for it, but I understand 15 that that might be a problem for the parties, especially you 16 were waiting for this ruling. 17 you'd be ready in July, the last two weeks of July. I do have -- I can get you in if 18 But, candidly, I'm out the rest of the year. I have a 19 very complex trial, criminal trial that I have to go to 20 Los Angeles for. 21 it's the one dealing with the smash-and-grab robberies of 22 jewelry stores all around Southern California, and I think 23 there's approximately nine robberies, and eight of them are in 24 Los Angeles County, several in the San Fernando Valley. 25 of them are armed. I don't know if counsel are familiar with it, UNITED STATES DISTRICT COURT Many Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 51 of 56 Page ID #:3665 51 1 11:15AM 11:16AM 11:16AM 11:18AM The 2 defendants, they're all from South Central L.A., supposedly 3 gang affiliation with the Crips. 4 matter how trivial the hearing is, it's usually a packed 5 courtroom with family members, so it doesn't make sense for all 6 those people to come to Orange County, so I'm going to L.A. 7 And it's anticipated to be an eight- to nine-week trial. 8 And then after that I have a case dealing with the 9 contamination of Orange County's groundwater, and that's going And at every hearing, doesn't 10 to be a ten-week trial. 11 details, but it was an MDL case for a while and then came back. 12 And the parties are very anxious to have their trial. 13 been out there for four or five years already. 14 to go forward with it. 15 important civil case. 16 hopefully you can understand I have to be here for that. 17 11:17AM So all the witnesses, victims are in Los Angeles. And I don't want to bore you with the It's I really have It's a civil case, but it's a very And with the procedural history, So that takes me out August through the end of the year on 18 those two cases alone. I have other criminal cases, I don't 19 know how I'm going to handle them. 20 them to Judge Real or Judge Carter, but I can't give you the -- 21 any other time. 22 it's going to have to be next year. I might have to transfer I can give you June, I can give you July, or 23 MR. RIDDET: May we consult for a moment? 24 (Counsel conferred off the record.) 25 MR. RIDDET: I think, Your Honor -- sorry. UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 52 of 56 Page ID #:3666 52 11:18AM 1 (Counsel conferred off the record.) 2 MR. RIDDET: 3 your courtroom deputy about dates. 4 things that we need to sort out and decide how we're going to 5 proceed. 6 We'd take a date in the first couple months of 2018. 11:18AM THE COURT: 8 MR. RIDDET: 10 11:18AM 11:19AM And then we're going to -- before then, we're going to go to trial or not. THE COURT: 12 MR. RIDDET: Okay. And hopefully it will be not, but that's something that the parties have to discuss. 14 THE COURT: 15 MR. RIDDET: Okay. Well -- Any day in -- any day in January, 16 February of 2018 is good for me. 17 THE COURT: I think what I feel most comfortable 18 with, if this is acceptable to counsel, is why don't you meet 19 and confer and submit a stipulation and proposed order. 20 now know what my availability is. 21 and makes sense to you, and then I will sign off on it. 22 23 11:19AM Okay. well before then, we'll probably have a decision on whether 11 13 I think there are some And so current date is unrealistic, July is as well. 7 9 I think, Your Honor -- we had talked to MR. RIDDET: You And do it with what works We'll do that. May I have one second with Mr. Miller? 24 (Counsel conferred off the record.) 25 MR. RIDDET: We will meet and confer. UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 53 of 56 Page ID #:3667 53 11:20AM 11:20AM 1 There is one request I would make of Your Honor. 2 know, the hard drive, the one that came from Best Buy, is in 3 the government's possession. 4 that they should not be allowed to search it any additional 5 without getting a warrant. 6 that or not. Mr. Miller and I have discussed it. 8 issue an order now that there be no further searches of that 9 hard drive until the parties have an opportunity to brief that 10 issue and advise Your Honor on whether or not they have the 11 right to search it any further without a warrant or whether 12 they have to get a warrant. 13 Your Honor to make that order. 15 And because of that, I would ask THE COURT: Mr. Brown, what's your response to their MR. BROWN: I'm not sure what authority Mr. Riddet request? 17 is relying on for that. 18 We're allowed to access anything that we bookmarked. 19 probably would up getting a second search warrant anyway to be 20 honest with the Court just to make sure there are no issues 21 that arise. 22 11:21AM I don't know that I'm right about Because of that, Your Honor, I would ask Your Honor to 16 11:21AM I think there may be an argument 7 14 11:20AM As you MR. RIDDET: We searched the computer already. We Well, if they're admitting -- if 23 they're stating in open court that they won't do any additional 24 searches until they get a warrant, I'm comfortable with that. 25 And maybe we can make that part of the order that we agree on UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 54 of 56 Page ID #:3668 54 1 2 11:21AM 11:21AM 11:21AM 11:22AM MR. BROWN: I'm not going to agree to that at the 3 moment, but I'm just telling the Court that my inclination is 4 to go get a second warrant so that there are no issues at all. 5 MR. RIDDET: 6 THE COURT: Then if they're not -Why don't you just see if you can reach 7 an agreement on it. 8 had two parts to my ruling this morning, and one of them was 9 there was no expectation of privacy on the hard drive. If you can't, you can't. But, you know, I So to 10 be consistent, I don't -- I'm not sure I can -- unilaterally I 11 feel comfortable granting your order, although I know you 12 respectfully disagree that -- I think Mr. Miller says that 13 Dr. Rettenmaier did have an expectation of privacy, 14 specifically that it wouldn't be turned over to the government 15 and the FBI. 16 11:22AM when we meet and confer. But that's not my ruling. So -- but if -- I'm always encouraged -- if the parties 17 can agree on handling of evidence and the issues, great. 18 That's wonderful. 19 make it part of the stipulation and proposed order. 20 If you can reach an agreement, you know, MR. RIDDET: Well, you're right. We do respectfully 21 disagree with your analysis on the hard drive, primarily 22 because we believe that although he was allowing Best Buy to do 23 a data recovery, he was not consenting to a government search. 24 And I don't think there's any question in the record that the 25 searches by Meade were government searches. He did not consent UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 55 of 56 Page ID #:3669 55 11:22AM 1 to that, nor did he waive his appreciation of privacy for that. 2 So we disagree on that, Your Honor, and that's our position. 3 THE COURT: 4 MR. RIDDET: 5 THE COURT: 6 11:23AM Okay. All right. I'll look forward -- can you get me the proposed stipulation order in about a week? 7 MR. RIDDET: 8 MR. BROWN: Of course. 9 THE COURT: Okay. 10 Thank you, Your Honor. Sure. Thank you. THE COURTROOM DEPUTY: All rise. 11 (Proceedings concluded at 11:23 a.m.) 12 --oOo-- 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT Case 8:14-cr-00188-CJC Document 259 Filed 05/18/17 Page 56 of 56 Page ID #:3670 56 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 COUNTY OF LOS ANGELES 4 STATE OF CALIFORNIA 5 ) ) ) I, DEBBIE HINO-SPAAN, FEDERAL OFFICIAL REALTIME 6 COURT REPORTER, in and for the United States District Court for 7 the Central District of California, do hereby certify that 8 pursuant to Section 753, Title 28, United States Code that the 9 foregoing is a true and correct transcript of the 10 stenographically reported proceedings held in the 11 above-entitled matter and that the transcript page format is in 12 conformance with the regulations of the Judicial Conference of 13 the United States. 14 15 Date: May 18, 2017 16 17 18 19 20 /S/ DEBBIE HINO-SPAAN_ Debbie Hino-Spaan, CSR No. 7953 Federal Official Court Reporter 21 22 23 24 25 UNITED STATES DISTRICT COURT