because this what case went over we're going to cut the next case five minutes on each side no just kidding expression of limitation and it makes what follows and central park the case of the government had approved the h k forty five caliber and they had to prove it was used in furtherance of the plant conspiracy and it's clear even the district court didn't necessarily understand this because when the defense move for a directed verdict on the twenty four c issue the court said it finds are sufficient evidence for a reasonable jury to conclude that mr holley possessed the forty five caliber handgun in furtheran a drug trafficking conspiracy and of course that's not what was required the government in this case made its choice and it's got to live with the charging decision they could have charged this not as a marijuana plant conspiracy but as a marijuana conspiracy or it could have just charged in the nine twenty four c in furtherance of a drug trafficking and activity as the court reference but it chose not to do so so then we look at the evidence it was a although not necessarily that gun but a gun at mr holly's residence and they saw him in possession of a gun in the vehicle so as i said i think that nine twenty four c case i think it's very easy and it really comes down to holding the government accountable for walk through the garage into your home there was a garage door inside so what that if you read the what the agent says in his trial says the dog perform to free it free air sniff of the residence the dog alerted to the odor of an illegal drug coming  an open field statement that they think it's totally controlled and it being you had a car in a driveway exactly right in the middle of the day and as the majority found this does this drive way came right off the street it was open gardena itself the talks are deans says the dog sniff isn't good for a residence or its immediate surroundings you have the whittaker case that just came out of the the the seventh circuit six days ago and as i said even though it's in the common hallway they clean it and they analyze it is a search of the home when the dog's nose is up against the apartment door and says the dog detected something that otherwise would have been unknowable within the apartment you had the mallory case granted district court case that is a garage door case and they analyze the they do the analysis as to whether it's a search of the garage and again negative granted some published but  it's the residence but i'm arguing in some way that it's not that important because we've got to figure out what most searched and here the garage door of the residence was searched whereas in mean it was the car that was the vehicle that was searched it  i suggest to you that there's no argument that they gave this good faith issue of products on the more interesting deal is was just brought the court's attention and the twenty eight j letter as to whether leon good faith applies and i'd suggest the court of a few things one if you look at whittaker whittaker although it didn't cite leon rejected a good faith burston actually talked about leon person is another case that came out that although mr combs thinks it applies the solicitor general doesn't think it applies i went and looked at the sort of petitions that were filed in mass in the government action file the sponsor petition without invitation which is somewhat unusual and they that they didn't have to direct the for the points in history argument and i looked at footnote three and they said it's a possible pain because it wasn't clear to the majority in that case whether there was actually a cause of connection between the constitutional violation in that case the legal detention and the ultimate warrant here dears there there's no doubt i mean the warrant comes down almost exclusively to the dog search but when these are these cases that we're talking  georgina and and bean in relation to when this sniffing took place did we have any case law on dog sniffing of that was in existence at the time that this incident took place on that goes to davis and david says bas is to say there wasn't doing this it wasn't this no there wasn't anything that said it wasn't a search the best analogy i can give you is that goose creek where it recognizes there's a difference from the school locker in a car and somebody is person and i suggest to the court when i get massey doesn't talk necessarily about david so it may but essentially relies on leon and says it doesn't matter what state of the law as the officer had good faith and then got a warrant and the judge signed off on them want to so there was two different kongs of the good faith that the that davis which i suggest is easy because there was no binding fifth circuit present the leon base on the government's twenty eight day letter is a little more difficult there are certainly plenty of looking at the weather an objectively reasonable officer could arrive at that conclusion we point out that that the fact that four supreme court justices believe that that was not an uncaused search shows the objective reasonable  go back to the done factors as this court has done time and again and the first of all the question is the proximity to the hall and that was a clear call in any of these cases including mr all ins get this this garage door is there with the hole but that doesn't end the the inquiries of the next question is whether it's included in a surreal enclosure surrounding the well and it is not mr hawley is the pictures in our brief show he had put up privacy fences around his backyard and yet those the enclosure around the home even the bean house in fact had a fence that surrounds driveway the mr ali did not mr holly's in fact driveway in the  key house here that is the greywolf house as the pictures show runs right next to a public sidewalk and one could even stand on the public sidewalk and and reach out and touch as garage door or come very close to it from the public sidewalk and so nature of what you put the the area and the steps that you've taken to protect the area from observation and so and as as you point out there are having a fence around is something that's important there police do something in this case sniffing every garage door in the neighborhood and the actuality of it are different because there's supreme court pointed out that there's a restraint on resources and so the possibility that the dogs have been in that there's a check on kind of community hostility and so and it all gets back to reasonable in this at the at the end of the day and in this case and the supreme court looked at that in jar deane's as well and in this case what the officer did they did they didn't just go to mr hall his garage door to sniff they actually spent several weeks in the in this affidavit in the warrant reflects that that they ran they did investigation of his financial records and they went and did surveillance on two different occasions but whatever else i had we knew that that first was issued primarily based on my primary gets to say  it for the great will of property itself states that officer sanchez the dog handler could himself smell marijuana emanating from the garage which goes back to to massey and that is whether a reasonable officer sufficient to search mr holly's garage and in fact just as kagan in footnote to the judge dean's mentions that everyone can agree that if the officer had smelled it and that is in that case unquestionably reasonable officer could believe that even excised and the dog out they there was sufficient grounds upon which to issue a warrant and finally under the second prong of the mousie  showing the object of all reasonable ness of the officer at that time in two thousand and eight this court had previously held in unpublished opinion granted but the tears on silva opinion that a sniff of a garage door and a dryer vent in that case can buy a dog sniffed by a dog was not a search and they went through the done factors and i would submit to the court that if three judges of this court arrived at that that very conclusion then in two thousand and eight prior to jelly beans it was object only reasonable for an officer of arrive at that same conclusion so then the next are you you keep that being does control here and in fact this case even presents a more compelling case than being because as i noted already in the beam case mr bean's driveway was it was fenced and mr the photographs really show that it's not fans he's putting it into is not putting it to private use in fact the story in both cases those photographs show the story is garbage cans out there and doing nothing else really with the area  so that leans toward it being the area being an open field as it was found to be in bean and so once it is an open field than a search on an open field  lean toward just as in being in the driveway being an open field and not not that it is you know and open field is just that for me it's not currently as it is not the whole and to address the argument had held had believed that sniffing the bottom of the door the front door and that is the orders emanating from inside the home clearly all then it would have been an easy case you wouldn't you know it certainly would have for them and significance it going to come into a done analysis at the end of the day it's going to look at the the weather the areas and within a closing eventually is not an enclosure of the nature of the area of the uses to which it which is put in so for instance the bursting case that was brought up in the appellants twenty j letter they point out that that was a plot window and kind of off to the side of the front door and mr bush then was putting personal making personal ir car sitting in a driveway and the majority of the being said that was ok so i don't know how the fact that somebody would you have to be used in an area to make it so personal a what would normally be a front porch you know where it where you might set off on shares and kind of watch the traffic go by and in a case like that you've now created a of weeks yes at all is there anything in a record to show whether they ever saw the garage door open and was it being used for cars it probably i don't know your honor but the  affidavit indirectly mentions that there's nothing explicitly in the record on that but the affidavit mentions that they saw mr holly's car come up up to the house and never never says that i recall that it actually went into that garage but what they did see is a car at the house i'm presuming it was in the driveway or in the garage but but we don't know if the garage was being used as a garage but if the door was never opened it could be that it was made part of the house it could be there's no evidence you know frequently but if you have a conversion garage situation where a person has a you know where they will the wall off situation such as that if the garage doors are the garage has been converted and there's a door leading into the driveway that you know maybe effectively know your front door so i think you we have to go through the done analysis yet again to them and so i agree that in under a done analysis the that may make an important difference in a case like that but is that isn't the case that we have here and so in this case  holly's driveway a budget a public sidewalk and a public street in the great will house which is the critical house and so we would ask the court to affirm the decision just thank want to read the concluding statement of drug deans the government's use of a crane collapse dog to investigate the home and immediate surroundings is a search and talk about where the dog ends and says the investigation of the home and its immediate surroundings a place they are it's probably not the front door but a side door in the government's argument had we had a house that was converted in the door with their dog goes right up to the dog they the door  you have to look at the area that was search and the area that was searched as dr dean says is was the home and its meaning surroundings we don't have to analyze whether there was a basketball ball in the driveway or whether we barbecued in the driveway we don't have to get that for the dog sniffed the home under jar deane's that's a search regarding the good faith of the officer here we have an officer in a different town this was a carlton police officer coming to the city of dallas at five am in the morning to do this search that same officer goes in gets a warrant says that he smelled marijuana in the garage lo and behold there is no marijuana on the ground so you ask yourself about the officers good faith no no marijuana in the garage even if you think massey's controlling as i said the solicitor general doesn't based on footnote three of massey this was not something that was necessarily close enough close enough to the line and given the manner the search was done surreptitiously five in the morning taking this dog from one city to another to just sneak up somebody else but that's what burglars do that's not what police do that's what burglars do sneak up to your garage door at five in the morning to try to hop wiring a car you also have the  great with that but no but implicit in in all of that is that there is no right to walk up to the sound of a house that that's an expectation of is no customer invitation to interviews or trying dog to explore the area around the home in hopes of discovering incriminating evidence or something else and that's in line with the supreme court and it does not allow people to walk open fields doctrine as i said i think that the first two questions are easy questions i think it's a search the davis good faith doesn't apply as the massey case troubles me a little bit as to whether leon applies candidly but given th the cases the whittaker case just decided denied and decided it wasn't good faith you have the first in case decided there wasn't good faith it very interesting thing is massey actually relies on the eighth circuit for the it's good