these the court time dan wilson representing the opponent in this case i'd like to reserve two minutes for my rebuttal argument one of the two issues raised in this case have to do number one with the sufficiency of the evidence and number two whether or not evidence should have been suppressed i'd like to address them in that order with respect to the sufficiency of the evidence i think it bears noting that the gun in this case was a man usual appearing again for all the world did not appear to be a typical shot in the sense that we envision them being like a single barrel double barrel shotgun that breaks at a hinge and opens to be loaded or unloaded this was a gun that looked like a rifle it was a bolt action shotgun with a relatively small verrall and the question i think that the court should focus on of the issue of course focused on is the aspect of the gun and what exactly is the barrel what part of that gun is the barrel if we look to the statute we see no guidance the bolt action in this case there is a question from the record based on the a t f agents testimony about what part of the gun was actually measured when he came to the conclusion in this testimony i believe that the bar approximately fourteen inches then he goes on to describe that he measured the barrel or at least took the measurement that he calls the barrel length from the tip of the gun to hand opening now because this gun consists of  wooden stock a trigger mechanism and a bolt and a long tube or in this case relatively short to from the tip to some point back at the ball there's a question of where was the measurement taken   the court's decision in gergen followed the united states supreme court's decision in staples where the staples court said that circumstantial evidence could be used to prove defend its knowledge of the characteristics  that bring it within the prohibition of the statute and those external characteristics are relevant consideration but given the fact that in the circumstances of this case we're not dealing with a collector we're not dealing with a person who had possession of this gu inches i think that a person of the jury going to tribute knowledge that the barrel was under eighteen inches to the defendant based on the circumstances because of the life disparity and this question the barrel length there's a question about what it actually was certainly based on the record and i think that if you added an inch or two to that fourteen or approximately fourteen inches you've got a real question there whether a person would know beyond a reasonable doubt and i think going back to the staples case the justice thomas said and distinguished are you arguing your grief i thought your argument was that if the government didn't shit show that he knew that it was an eerie program seem to be arguing that the government didn't prove that it w legally i think what i'm arguing in the brief and what i'm trying to argue today is that from the evidence it's not clear number one what the actual length of the barrel was and because the actual length of the gun being twenty four and a half inches or so close to twenty six and a half inches that person looking at it would not be able to know beyond a reasonable doubt that it fell that he believes that twenty six inch threshold just from looking at him although you're not trial that because it's a bold action what the length of the perilous and i would suggest that there is no difference between breaking open a shock and that has a hand and measuring from the point of that break where the shell goes and the end of the barrel or pulling back a bolt and he's talking about the measurement from the shortest possible measurement even if you we're talking about the longer version all that would simply make that gun more obviously short so i don't think there's a real distinction there that the defendant i don't see each after there's not an extra couple of inches there anything there are a lesser couple of inches with respect to whether it's not as obvious though i think merely the jury verdict suggests that it is defendant complains that there was no measurement during the trial or in court to show the jury exactly what this measurement was for what does that show other than the shortness is obvious  characteristic which is exactly the burden the government has to prove that we've clearly proven even aside from mr gergen or excuse me mr white's having altered the got himself that he had knowledge no problem and i don't think that's what the law really intends and like redress also the search issue the defendant raises particularly with respect to whether or not the incriminating nature of the id is immediately obvious and it seems to me that in senate seems to be suggesting that the officer needs to understand immediately upon seeing that id not only that it has an incriminating nature but exactly what that criminal in nature is and how it's to be used and this case that's probably impossible we've walked into a house where we know a man is suspected of a violent possible possible let me explain why for me out we know we have an officer who's walked into a house he knows about a man that he's probably committed a violent assault and he's searching with for evidence with respect to that any knows that there's another woman involved in that assault somewhere he knows that the person has been charged with robbery and has apparently been involved in robberies he wants into the house and he sees what appear to be burglarized items including stereo equipment and also finds drug evidence so here we've got a guy who is apparently involved in drugs in robbery in violent assaults is incriminating in nature i don't know exactly if it goes to the robbery or the burglary or the drives or the assault but merely from the fact that his take that and based on this man's criminal history if there can be no doubt that it is of incrimina nature the mere fact that he has secreted it underneath the mattress and taped it up that way shows that it's incriminating and i don't think the law requires the officer to know right now as he looks at it oh well that's  i'd like to take issue with one of the arguments that the us attorney made that the jury saw the gun and so therefore decided the verdict because it was obviously a short gun i believe that you can't make that argument really in good faith given that the jury heard the found the i v documents did not testify that he believed that there was armed robbery that chain white was involved with before he conducted the search where he testified to was that the woman who had recorded the assault at the trailer  shane white was wanted for a burglary and a robbery being different than a burglary that is what prompted a deputy cooper writer to take particular notice of the stereo equipment and the telephones and so forth that were found in the that to that he had no idea that it was connected to any crime and the district court found that because there was some conversation a couple of days before the search between mr white and this alleged victim of the assault in this trailer about  cheryl downs actually procured a third person the deputy in fact testified that when he saw it he had no idea that it was connected to any crime and his suspicions that it might be evidence associated with any crime or only arouse all the documents and saw that the woman was from a different town that just a town in montana called three fourths not in helena and that was the only thing that aroused a suspicion it's our position that under arizona versus hicks when the officer bent over and picked up that i v document and looked at it he performed the search and that the only connection between the the inevitable or the eventual linking of this package to the crime that occurred eight months earlier