one one dash five five six for usa vs charles green or argument fifteen minutes per side mr winger for the well and i guess the argument that i think you have to grapple with is maybe it dissipated as to the cocaine but the cocaine wasn't the only thing in the search warrant  cocaine was not the only thing that the search warrant authorized the officers to search for so what would i mean what do you do with that it's like you know let's say he found out that they took all the crack scales out you know all the crack is piled up you know in the washing machine but the there's no cracks they could still go and do the exact same thing right so they just swapped out a different item no i suppose it just catholics but in response it's the first of the record demonstrates that that's not what this officer was doing he had stayed on the record several times that once he found out that it would be too hot for the  for my clients you have a cocaine on him at the time he concluded there was nothing in that house and he waited until no cocaine write the word he uses nothing your honor i mean but fair i mean fairly he's not saying that they evacuated like all that stuff that's that's a that's a pretty broad reading of what the what the guys know certainly could be considered a broader reading but at the same time going back to what it was that this particular officer was searching for time he was looking for marijuana it seems that's correct i think and that wasn't something he was authorized to search for so that's that's the good thing for you the bad thing for you would seem is i mean we have her examples bowling case which says if circumstances change you should go to the magistrate but even if you don't we're not going to suppress if a neutral magistrate objective standard would have found probable cause remained anyway and so i would say there that number one it's not subjectively what's going on in this officer's mind and number two we need to focus on was there still probable cause at the time the search have is that i mean is that the analysis we're going to do here that is but i would submit to the court that bolling's has essentially crafted a harmless  analysis for this particular violation of the fourth amendment and the question is will we can look back into the past in the side considering the talent circumstances whether or not this officer did have probably cost to search irrespective of the fact that he did not bring this information back to the right and that's a good question there is a question in spring under these circumstances i believe that that particular part of bowling is in bowling the court held that the initial search that allegedly had this been a problem cause didn't actually dissipate the entire problem in this case we have a distinction because the officer had said that the object search warrant was issued for would not have been found had he executed a search warrant so i think that we can distinguish that part of bowling on the grounds that this court in bowling had found a problem cause it dissipated so in that sense executed within the timeframe established by the rules but the circumstances which gave rise to probably cause have have to essentially remain the same they can't have changed during the time period between issu the search warrant in the execution of the search warrant now back to judge kessler's point about this warrant being issued for several different items property i would still some to the core number one that this officer was not searching for pipes or baggies or anything else that they seize any stuff like that they had seized scales i believe in bags but i mean doesn't that refute that factual contention bowling seems to say we don't try to you know psychoanalyze the officer we just say was there still probable cause when the search took place and i mean if that's the test why wasn't there as to everything but the that officers may not use a warrant describing one kind of evidence as a pretext for searching for evidence outside of warrant so to your point as far as what the this court said about the subject that's a good answer pretext  the point about bowling i would suggest again that in bowling that case dealt with the fact that probable cause had not dissipated in this case as it was one thing or everything it's not entirely clear from the did not go back to the magistrate is were saying the officer should have we're not going to suppress if probable cause was still in effect that's very sure that's exactly harmsen or not right and that they actually applied that because they had to find that probably cause remained in order for that rule to kick in and so it wasn't a gratuitous statement of a rule that actually applied it there which means it's not  describe the way you have just got this out agree with you on that point i would still suggest that out that the facts of this case are different than the facts of bowling in such a way that if we were to take a look at this particular search in whether or not the information he has supporting the continuing nature of probable cause to support this warrant was a that he that if the marijuana might be coming to the rez to the residence which is a substance just not contemplated by the four corners problem with that is what he learns is quote there were no longer drugs in the residence right right that only speaks to one of say a dozen different items that the the warrant authorizes the officer to search for it says nothing about say the other eleven with these other eleven items that you referred to just half and none of those standing alone are contraband we're still talking a bag or scales or things that if the warrant still i mean it would couldn't the officer have gotten a warrant to just go in and find baggies and scales and all that sort of thing that would have been a lawful warm i mean it could be related some prosecution you know baggies that a warrant doesn't have to limit itself to things that are themselves unlawful to possess i mean more to go all day long you know allow you to take files and so on and do all kinds of forensic stuff to try to figure out if the fact that the search itself for baggies for money for scales would not have been authorizing a search for anything that has any sort of criminal nat me please the court my name is look mclaurin and i here on behalf of the united states the do now defense motion to suppress should be affirmed for a very simple reason there was probable cause to believe the defendant's residence contain evidence of crack cocaine meaning fracturing at the time that the warrant was issued and at the time that the world was executed now as you know judge kathleen that the warrant here was was broader than just looking for the drugs it was looking for evidence of this crack cocaine manufacturing crack cocaine distribution activity that the officer had observed over several months and i'm served several control purchases there was a lot of reason to believe that this house would contain evidence of this drug trafficking activity they certainly hopes that they would find drugs because that's very powerful evidence of drug trafficking activity but as you noted just got other things that can be evidence of drug trafficking activity well that's your strong point i mean search for cocaine the officer says he had recently there was no longer cocaine there he decides he wants to search her marijuana the search was timed to find marijuana and when he's looking for marijuana he's searching for something that the warrant didn't authorize him to search for what i would disagree with that that summary of the facts i think that that that is what defendant summary the facts is but that's not what the facts in the record actually show and i think it's very important to look at that the key parts of the record here is the suppression transcript and i really want to point the court to page id numbers three ten three three eighteen those are really the key pages here the key discussion and  i want to dispute a few factual points first there's no evidence that the officer here was primarily trying to search for marijuana in fact he expressively disclaimed that that's what the what the what was trying to go on here if you look on page three sixteen of the transcript the defense come to try to say well look now that you knew that he was going to have marijuana didn't that switch the whole focus of your investigation from crack cocaine marijuana deficit no not necessarily i mean the search warrant was not just for the controlled substance itself it was for the evidence of the crack cocaine manufacturing receipts phone records personal yet the officer himself said look i wasn't just looking for marijuana of course i thought i was going to find marijuana i was looking for all this other stuff that the warrant actually authorized affidavit r  at the time yes you'd want he believe that they were going to find cocaine he also thought they were going to find marijuana but he believed he see testified he believed he thought they were going to find cocaine and i also want to clarify thing and the reality is he's searching for some things that are authorized and some things that aren't and the thing that wasn't is really driving certainly the timing of this search and that's fair isn't to some extent i mean i think what was driving the timing of the search is they they learned information that you know the defendant thought it was too hot and so he was going to he doesn't have drugs that day so they're waiting to figure out ok when is he going to have drugs again and then he said he tells the confidential informant hey come back later tonight and have some w and so they think and they they observe him they watch him go to a place where it looks like he's engaged in possibly obtaining drugs and then he goes back to his home and at that point they think there's good reason to believe that you know he probably had marijuana but they also i think believe it then it's clear from the officer sesson when he believed that he was also going to find cocaine and i think the point is that you know he could have been obtaining marijuana as well as cocaine and i think given this whole history that they had observed at this house all these multiple sales of cocaine they had reason to think ok he temporarily removed his drugs and now he's got some drugs back now that he's got some drugs back now's the time to execute the warrant because now's the time that we're likely to find the evidence and i think that  just wanted to clarify that factual point but what i would say even beyond that even judge kessler if this were a case where the it was it was absolutely clear that the officer was looking for marijuana and he only had a warrant to search for cocaine that would not be a problem now the defendant cites all these cases like redig and a lot of these older cases from the one nine hundred seventy s those cases fly in the face of a supreme court case and a lot of flying in the face here that there certainly has but i think there's a put is that david that he was going to find not only the proceeds of the robbery but weapons that were used in the robbery the magistrate who issued the warrant said you know what i'm only going to give you the warrant to look for the proceeds i'm not going to give you warrant to look for the for the weapons officer went into the place and he was of course looking for a bowl and he found the weapons and the supreme court said you know what that's ok it doesn't matter that even though he went in there knowing and looking for something that was not specifically  evidence of crack cocaine manufacturing and evidence of crack cocaine that you're going to look in drawers if you pull open a drawer and you don't see you cocaine but you see another drug i mean it would be unreasonable for the officer to simply ignore that other drug and say oh well well you know i'm only have this war so it was found in the areas that they were searching for this evidence of cocaine and cocaine manufacturing and they found the firearm and it the contrary nature of it was was perfectly clear because the officers executing the warrant knew that this individual had prior convictions and so they knew that he was not allowed to possess the firearm so it's contrary nature was immediately obvious i also want to correct one other factual point in the record the defendant keeps again i think a lot of large part of his arguments are based on a mischaracterization of what the suppression transcript actually says he says well the officer admitted that there was no probable cause he expressively declined to say that that defense counsel trying to get him to admit  so then the probable cause you had is no longer valid answer no and then defense counsel also points out look he said that there was nothing there the only person who said that there was nothing there was the defense counsel at the suppression hearing the officers testimony was that there were no drugs going to be found and then if you look later on in the transcript the officer was very clear that he still expected to find all this evidence of crack cocaine manufacturing so i think if you consider the record in full what we have is a situation here where all the information that the officer learned subsequent to the issuance of the warrant none of that undercut probable cause to believe that there would be evidence of crack cocaine manufacturing at the venice residence and so i think applying the standard  you said look the officers when they conducted this initial quick search of the trailer on that reveal nothing mick would consent search they should have gone back to the national but the court said we're going to apply this principle that even though they should have gone back to measure it under the to tell me of the circumstances they feel you should do so wasn't problematic because even if they had gone back the magistrate there would have been probable cause so that legal point was not at all dicta in the bowling case it was central to the bowling he says hold in less there are any other questions about about this issue or any of the other issues we're certainly happy to address in our briefs but we'll make sure the judges get a chance any residue of that i don't know the answer to that question off the top of my head but i think the relevant pages in the in the record that  you that would have that information would be page id's numbers one thirty two through one forty one that includes the warrant and the the search warrant return from looking at the officers return it talks about them finding electronic scales they also found be given all the evidence that of all these prior sales that work during at this house i think it's reasonable to believe that the defendant was using it those skills not just for his marijuana operation but also first cocaine operation  would direct this court again back to the garcia case this is for not six right at third in the garcia and particularly judge moore's concurrence which you know candidly did criticize the tension between horton and the holding garcia but this court has said that other circumstances is prevented officers from using a warrant ascribing one kind of evidence as a pretext for searching for evidence on the war got the majority holding  but you know mr mclaurin points us to testimony that suggests the officer that it wasn't a pretext that he was in fact looking for you know a bunch of the stuff that was he was allowed to look for what i think the better view of the record was is what you sir have identified before and that's the timing of the search the reasons why the search and his own testimony suggest that this search was driven by a desire to find the marijuana that was described to him as being present in that house now the other factual correction i'll make is there is testimony in the record that says that when the officer agree that there would be quote nothing in that house had he searched that scales and had the search been for bag scales or other evidence of a crack cocaine distribution operation that search would have occurred when that morning issued there was no there's been there was no suggestion the record  late except for the fact that this officer was waiting for drugs to become present again in this residence now for safety officer the drug he found out about was not one that was he was authorized to search for