may please the court my name is andrew brandon i'm here representing antonio porter and at this time i'd like to reserve three minutes for both thank you your honour's now is not the time and this is not the case now is not the time for this court to expand its th amendment jurisprudence to hold that the mere odor of marijuana on a doorstep is sufficient probable cause to assume that there is evidence of a drug distribution inside of a house we live in a time where there is greater and greater access to legalized marijuana not in tennessee but certainly there is more and more access to legalize marijuana to where it's not fair to assume that because somebody has because there is a smell of marijuana in a house or why in tennessee with i understand your argument if you're in colorado or some article why intent is a problem but i'm suggesting that it's a problem to assume that there is as this warranted that there is evidence of distribution of paraphernalia of of trip a centrally a drug trafficking operation going on in the end i mean right the ultimate inquiry is whether they'll find evidence of a crime and in tennessee mere possession is a crime and so the question you're asking not to expand is i assume carcase law that says smelling is an op i don't understand why the fact that they're intended to see it marijuana and we would expect to find a smoked a joint in this house that's not what it said it said we expect to find evidence of the distribution paraphernalia all the things associated with you know with with  distribution and i would question whether or not the magistrate would say you know that's a an adequate reason to enter the home but isn't that the problem here that the affidavit says that there is probable cause to believe that there is drug paraphernalia in the home whereas the only thing that the officers knew was that there was the odor of marijuana well that's that's correct but but i mean they also may interrupt they also but but yes the warren affidavit states that will find marijuana and paraphernalia associated with the use packaging sale and distribution of illegal drugs and so so again we we  have this issue of of you know things like c b d oil more and more things that smell of marijuana to where the mere odor of marijuana should not get us a warrant to search a house but this is also not the case and the reason it's not the case your honour's is that there are two egregious factors sort of in addition to that just that that issue of the smell the st egregious factor is that we learned in the suppression hearing ascii police department just go ahead in entering to the house when they serve a warrant an arrest warrant they go ahead and enter even though they don't have a search warrant even though clear six circuit precedent and supreme court president and buoy your a my mean so i'm forgetting i thought what happened was he came out did they go in to get him you know that he came out of the house and so and they arrest him they take him to the car alaska we always go into the house to secure everybody knows that my misstating anything that no that's correct they said they said oh you know we this is this is special police speak that we have that we mean even what is the law on if you arrest somebody outside his home and have him at the police car what is the law about what the police can do while they are waiting for a search warrant to be issued by a magistrate your honor the the so so ordinarily the police might be able to conduct a buoy search but that search can only occur if they are if they go into the house in order to to to serve the arrest warrant when when the person has stepped outside of the threshold this issue is controlled by this court's published president and that in archibald i believe it's called that says that at that point you would need to have some indicia of some sort of officer danger to it to justify going in the house and officer danger here arguably you can tell me why it's wrong is this woman  who was who was known to be present in the house because he had come to the door right yes so did they did the police under the law have the right to go  that in this case we know they weren't worried about that because even when they went into the house they let her go off into rooms where they couldn't see they couldn't follow or think they clearly weren't concerned she came to the door in a in a t shirt and underwear i mean she was asleep there were five kids in there and so the there was just no windisch of of any any worry and i think archibald stands for the fairly clear proposition that you can't just gin it up by assuming that in every case somebody could go in and destroy destroy evidence because i mean that that is certainly true of really any case it so happens that there was no drugs to destroy in this case but it you know and i think that that gets to  the nd sort of point of of inflection here of sort of egregiousness is that they in fact went into the house illegally and then when they got there they found something extraordinary which is nothing at all more specifically they found five children in pajamas who were asleep in various bedrooms of the house and they found their mother who had been asleep and who was awakened at four thirty in the morning and they specifically stated oh no we saw no contraband whatsoever not only did they say that but they then said contradicting every police report in this case they said there was a nd phone magistrate in this case we made a nd phone call just to make real clear that we had entered into that house and incidentally we'll make real clear by using the least clear language possible but we want to we really wan that said hey we smelled marijuana get a search warrant and then and that is consistent with all the police reports in the suppression hearing there was apparently they testified that there was  don't mention that hey you know why don't we said there's going to be evidence of drug distribution paraphernalia all of this but by the by we found five sleeping kids and their mother in the house and no evidence they didn't serve i mean there's and it's undisputed they didn't search when they went in i mean drug evidence can be anywhere it's not going to be out in the open in every house well they could be but that but this this highlights the where the sort you're right about some of this isn't there some factual findings that need to be made by the district court about these things aren't these questions of fact versus questions of law well the in this case the judge basically decided that because  there was no evidence found the court didn't have to address that issue and so our point was and we made this in our in our post hearing very thing there's a big problem if if they found nothing and we you know we made this argument but the court made no findings was satisfied that the lack of findings if you want a quick what about good use real quick and the mclean case in particular i'm going to have to review the mclean case a little bit closer and i will do that but but ungood faith the in this case there's does appear to be a reckless disregard for the fact that if you you know we we we  said there's this strong odor of marijuana and that means drug distribution inside the house they go in they go in multiple times take five children their mother carry it out when i don't buy as much because  if they're really not searching and they're helping out that's a different right they're serving a different function there they're not there's a difference between searching and just going and if someone says come help me carry this piano and you help carry the piano out you're not  hey we went in there and they specifically don't make any reference to the fact that they that they found nothing that we have a problem here i mean that they're really so they have to find stuff in plain you is your new standard  their mother all asleep they go through more than fifty percent of the houses there was a drug distribution ring that said there'd be evidence of drug dealing evidence of drug distribution yes or ok thank start by talking about why so he cites three cases for that proposition and brooks and looking at those cases i think demonstrates that this course court has never said that in fact it suggested strongly the opposite so brooks in particular i think marijuana and seeing some seeds and seeing cash on the person but when you get into the analysis section it's clear that it's the detection of the odor that's driving the probable cause there the court says once an officer texan odor of marijuana emanating from a particular place the only way for there not to be probable cause as it is quote if the magistrate were acquired to assume that the defendant had just smoked his last bit of marijuana immediately before the officers arrived we do not think that was and which of the three cases that this is wrong and then continually required more than marijuana this court is has never held that in fact it's wrong suggested that odor like many other senses can provide probably cause so it seems to me your friend's argument is not per se marijuana there and not anything else unless you have more i think i think that's probably fair to say if you smell the odor of marijuana biggest cost believe there may be more marijuana in the place from which is  more using the word more there that there may be marijuana because he didn't have marijuana on him when he was arrested right now on how they did my colleague suggested that they never found any in the house they did find her until noon they found  and marijuana product that's ok and so when i say more i guess what i mean is there was the marijuana that caused the smoke or caused the smell and then there's but it's reasonable to believe that there may be more inside this as the courts and brooks  so so this affidavit would appear to be overbroad as you use the word overbroad to have the idea that there's paraphernalia associated with packaging sale and distribution i don't know that i can see that it is overbroad but if even if it were it wouldn't provide a basis for suppression all it would provide would be a basis for striking that part of the affidavit which would have no which would because not change your position is that the that if the police smell marijuana when when the door is opened they can obtain a search warrant without anything more and there's what if they live in an apartment house where other people are smoking marijuana but not so we're certainly not asking for a rule that anytime police officers smell marijuana anywhere it probably cost a search anywhere near pot they have to show probable cause it's emanating from a particular place here they did that and that doesn't sort of open the parade of horribles that i think  suggested that this rule would would kind of allow everywhere to be searched ok so there are certain extenuating features here about it so what are they in the affidavit what the extenuating features are or is it something that you can find out later apartment you agreed it could have been somebody else's apartment if it's just out in the hallway so you know if there's a walking down the hallway smell a generalized odor of marijuana it's unclear where it's coming from that's not going to cost to search any particular park so and here it does say in the affidavit it was a mobile home and the number and so forth so so essentially then you're saying that the police can get a search warrant anytime that there i think there are a few things to consider so i mean i think if the affidavit lays out there's no smell of marijuana the door opens smoke comes out that a sandwich is probably cause that there's contraband inside you know if the concern is sort  of how this might apply more broadly there are a number of kind of pragmatic considerations that will would limit those concerns so for example under florida versus george dean's police can't just kind of come up to any home and start smelling around at the doorway here of course they would they were not doing held probably cause the odor of marijuana establish probable cause to search i think we'd see that playing out there you certainly don't see any situations where police officers walk through a parking lot smell marijuana and just what would you say were the other home cases i'm sorry said brooks what were the others elkins and frisky those ability three cited for that proposition and so i might talk just very briefly about this vehicle search cases because again there's this long line of cases very squarely cause it's what happens once probable causes but stablish vehicle search context officers can search without a warrant residential search context the absence of exit circumstances they have to go present that evidence under oath to a neutral attach magistrate and seek a search warrant and if there were to be a different rule between the two contexts actually very counter intuitive i think to say the order marijuana suffices to to authorize a worthless search but does not suffice to establish a search pursuant to a warrant and part of the reason for that is when this court or when a lower federal court considers a special motion based on a warrantless search and seizure it's essentially deciding to novo whether probably cause existed but when it we can't say there is a substantial basis when you address the securing of the house both in terms of what what securing of the house should in detail and also with respect to the affidavit so with respect to the statement by the police here that in alaska or alaska county whichever it's known that securing the house means you go into the house is that a common understanding that we should know as a court you know i think it's not quite right to say securing always necessarily means going in i think it i think the testimony context essentially securing the house often involves going in when you as here you know there are other people in the house so what is it that made it proper for these police officers to go into that if it is because they knew that there were men was in the house so  if i could preface my direct answer your question very briefly you know our position of course is the legality of the search is not properly before the court because under saguaro under michigan versus hudson whether those entries were were legal or illegal has no bearing on the seizure of the evidence and so exclusionary rule would apply in any event but if the court wants to analyze whether those entries were valid or not i think the proper framework is actually not the protective sweet sweet doctrine of maryland buie but the impoundment doctrine a bill in illinois versus macarthur which the supreme court case basis says you know when officers are seeking a search warrant and they have some reason to believe the evidence could be destroyed because there is someone left behind in the home they need to balance the privacy interests of the person and i'm not and i interrupt on that i'm sorry because the where i struggle with that is correct me if i'm wrong they got her out and then all that was left was the sleeping kids  that's right how would that help you in that circumstance because i get the concern with regards to her but how does it with the guards to the kids there's no evidence they were worried the kids would do anything correct and so they didn't go into it  taken away that while the police are trying to obtain a search warrant they can take any other adult person from that house regardless of whether they have any suspicion about that adult person no i think there's some need for suspicion but it's not certainly not what's this person did they have about ms for well i think i think it can can just be you know sort of contextual this is someone they don't know smelled opium that gave them an op but johnson they held there's no accident the allowing the officers to go in even though they've heard shuffling noises and spoke to a woman in the hotel room who denied there was a mile of opium even though there was opium i mean i agree with you it's not contingent on the search but i'm troubled by the notion that officers can go in and just don well i think the illinois person the carter case kind of gets into that and so there's kind of we need to have people outside of the house to make sure that kind of the status quo is preserved while we seek a warrant and then in the meantime you can balance the person's need for personal privacy with the legitimate law enforcement needs of preserving evidence and so in that case it's actually the defendant the homeowner who goes back and several times when he does the police accompany him in just to keep eyes on him i'm sure he doesn't do it i thought in that case they had a  well you know i think like a specific worry i don't think the standard is you know unless the person left inside has told us nd you walk off on destroying evidence in the south so i don't think there needs to be some heightened standard of probable cause it's just you know is there reasonable cause to believe that this person who is the girlfriend of the arrestee the person who lives in this home for which you know this probably costly was contraband s thing you know you arrested him because he is a gang member you arrested him because he's done something wrong of course this person in his house and somebody that he knows and likes they're going to want to protect him so they're going to either find a gun and shoot the police or they're going to destroy evidence i mean you are automatically saying that in order to secure the house you do have a right as police officers to enter the house well i think there's a ingredient missing there that maybe was implicit in the question but there also of course has to be independent probable cause to believe that there's additional evidence in the house that they're in the process of the order of the marijuana so it's not any time someone gets arrested it's someone gets arrested there's probable cause to search they're in the process of getting a warrant or someone inside there's a concern that that person could destroy evidence in the interim and again the only person macarthur case talks about reasonable duration was let me give us so if there was no probable cause and they thought there was and they secure and that is the basis for their probable cause they see something you agree we have to suppress under that scenario i think they'll be right so if there's no probable cause let's say for example adult in there and they can go well i think it let me have one more just kind of wrinkle to this case which is that it's not actually entirely clear from the suppression transcript that they went in and forcibly removed miss for she came out and then when she went back in the company of her to ensure that she wasn't destroying evidence i think that is permissible there accompanying her these would be the destruction of evidence as opposed to officer safety i think that's right i  other side has argued that they've put in something in this affidavit during the time in the during the time the residence was secured there was still an odor of marijuana that could be smelled by the opposite so something is put in in the that talks about this time and reading between the lines we know now that it's while the offices are inside the house why shouldn't they have simultaneously included but we didn't see anything in plain view so i think that goes know basically the frank standard for material admissions you know it is is the additional information so material that they were obligated to include it and i think we would accept the proposition that there may be cases where while seeking a search warrant you go in and it's just it's obvious that what you thought would be there was not there this is not one of those cases as i think someone just questions alluded to if you know what you're searching for is contraband and you go in and just kind of watch a person as she gathers your children don't open the drawers don't open the cabinets there's nothing that the mere fact that you haven't seen contraband while not searching for it and while watching a person get her kids out is in no way material to whether they'll be contraband it is a troubling case owners did want to mention two very quick things illinois versus macarthur and the impoundment doctrine that's the st i've heard of this in this case it's not in the government's brief and it's i don't think the court should consider that secondly it's not just that they hadn't seen contraband but they walked in and they they said you know the smell didn't get any more intense it didn't we didn't notice anything new in there after this very profoundly strong odor of marijuana outside the door which incidentally we couldn't tell despite our training on this subject we couldn't tell whether it was green or smoked you know there there are essentially they fact is not in the warrant affidavit but it regarding the franks thing the you know again if this if we had been talking about we expect to find this smoked blunt or whatever in the in the the house then there would be a different just what about their point that it's just over broad and you can strike that stuff it doesn't affect probable cause well i mean it is admitted that he had smoked marijuana in that house within twelve hours why does that not least that there was marijuana in that house in the past and they continue to smell so and then i'm sorry to interrupt you and the affidavits the affidavits includes things they would get for possession and then i agree with you it's well beyond what they would get it just if you imagine a police officer coming your home and saying you know you open the door they smell marijuana and you say well ok i don't i didn't you know i just smoke a cigarette he admitted it but but but then the officer says i'd like to come in and search and he said go ahead and get a warrant and then they go they say all right i will make a phone call and i'm going to enter the house and then they start entering the house but why does that affect the probable cause determination i agree with you that problematic and they shouldn't be doing an absent delineated exception to the world but why does that affect probable cause inquiry as to whether there was this financial basis for the nothing here we're going to secure the house and then they find nothing and then they call the warrant the magistrate back and say i just wanted to let you know we're being very responsible we we went into the house