applied for a michigan warrant based on purported violations of michigan law and yet the district court held that that officers knowledge of the defendant's compliance with state law was irrelevant to the inquiry as to whether probable cause supported the issuance of the warrant we believe that this is reversible error and we asked this court to reverse on that grounds the first step of the inquiry is whether federal law or state law would govern the law but was before the district court we believe and we rely on one hundred sixty one hundred eighty six thousand and four hundred sixteen dollars and united states currency analysis is whether under michigan law whether if these the defendant's compliance was included in the warrant would that negate or destroy a probable cause we think people brown footnote five says it all knowledge that a person is in compliance with the michigan medical marijuana act must be included in an affidavit because such a situation would not justif so what was the error of the district court the district court held when defense counsel attempted to establish first that the law enforcement officers went out to the  they inspected the marijuana growing operation and they gave the duvall's advice on how to comply with michigan law and in fact they attempted to establish a devolves acted on that advice constructed just as the police officers had instructed them to construct a greenhouses where nobody could see the medical marijuana fenced erected fences around the enclosures put locks on the greenhouse fences and hung the registrations from the lock enclosures let me ask you putting aside the validity of the search warrants can you can you find any federal cases that conclusively support your marijuana growers your honor that we recognize that this court recently held and the government to its credit citing supplemental authority the marcin q and waldron case we believe that cases now returning to the district court's ruling on the legality of the war here's what the district court said that the government's main argument is that we waive the argument we don't believe that's true we place we believe that we placed it squarely before the district court and this court needs to look no further than the district court's actual ruling on this point and it said this is a quote regardless of the legality of that or the conflict between state and federal law the question before the court now is whether there was probable cause to believe that there whether a magistrate could judge could determine that there was probable cause to believe that marijuana was in growing in that greenhouse at the time which in fact is a violation of federal law regardless of michigan's medical marijuana legislation that we believe that the district court was operating under a fundamental misconception and in a rony assumption as to what law government if it's a warrant which it's clear from the face of the warrant that it's a state law and there's no citation to federal law there's no indication that the state magistrate passed on the question of whether it was in violation of federal law we think it's clear that state law should say that law consideration should govern to kuli in a case like this where it's something is legal under state law and after all we were in a frank's hearing so we were trying to establish whether there were reckless omissions on the part of the law enforcement and the second point by the government is that that we  fail to establish that a deputy clinic in fact had clear knowledge of the violation or that they were in compliance of michigan law in fact argument doesn't depend on whether or not glick whether it was esta the deputy glick had knowledge of their compliance with michigan law we are point is that the district court erred in preventing us from developing the factual predicate to make that argument in the first place know that he signed a warrant in his capacity and it was a miss monroe county warrant we know that he worked on operation help and we know that he had ridden in a helicopter on operation help missions we know that he was familiar with this very property he said that he knew the property and there was a residence on the property because this was his former area of his patrol we also know that he bragged about the bust to officer know that he in fact had consulted with law enforcement officers from the area at page id three hundred eighty four he talks about how he consulted with the detective corey and a retired lieutenant cocky so look what we know is that he talked to people in the neighborhood he had done some homework he did some research on this issue the this particular residence we think it's at the very least it's a fair inference that he had knowledge that they that these other officers who were centrally also local army officers that they had come to the devolved house and as it evolves maintain and the government doesn't seriously dispute they had given them  advice on how to comply with michigan law wouldn't you like to know that if you're a state court magistrate wouldn't that destroy probable cause we think it would we also know with respect to this this suggestion that that deputy glick is in one silo and he's insulated because he was deputized by the way and there are these other local law enforcement officers we know that's simply not the case they're all monroe county they all work in the same army task force and they all were the they worked in conjunction in on these operation help missions they all worked together so it's a fair conclusion i get it argument doesn't depend on his actual knowledge and we think the facts that were developed at trial should be considered something of a proffer these are the facts that we could prove if this court with a remand back to the district court and allow us to pursue the inquiry because clearly it's not your relevant in fact i would say you're relying on this footnote five people the brown and it says if the police have clear and uncontroverted evidence that a person is in full compliance with the and that should be included in the war officer glick though found out that gerald duvall had a prior felony a federal felony conviction for cocaine trafficking right that made him ineligible to be a caregiver under the m m m that's correct but he had knowledge that he was in fact not a caregiver he was in fact a patient and a patient can only have twelve clients rights correct well i mean he could that he observed when he from before he got the warrant that there were far more than twelve plants be grown in these two where two greenhouses that's absolutely correct your honor but our point is that either deputy glickenhaus was disputed a trial when there were three witnesses who testified the deputy glick in fact personally came to balls residence and it glick that gave you advice now we recognize it was a disputed fact trial but if it is the case and we would like to develop this at the district court level if it is the case a deputy glink knew that it wasn't just general devolved who was growing in those green houses but it law and it would there would be no probable cause in that scenario even if we did win even if this court holds that we waive the argument we don't believe we did we think that it would be a plain error it's subject to plain error analysis and we think number one there is an error number two it's plain if you look at the face of the warrant it's a state court want the government doesn't seriously contend otherwise and number three it effects affect substantial rights there can't be any right more substantial than joe de bar having to serve ten years in federal penitentiary and for it seriously affects the integrity of the judicial process argument on that point is three fold first we believe that you can't run do an end run around rule forty one which says that if you're proceeding in a federal prosecution you have to either appear before a federal  alternatively there has to be some showing that is that there is no federal magistrate reasonably available the government hasn't even responded that argument and there was no showing that there was no federal magistrate reasonably available but the bigger point is if we take a step back here the government has released a number of the department of justice memoranda saying we're not going to prosecute people who are not in compliance or we're only going to prosecute people who are not in compliance with state law arguments to the briefs and try to explain why the district court was correct to deny suppression because the warrant was adequate and the suppression motion was not well taken if the court wants me to read rush to address the waiver arguments i certainly well but i do want to say one thing about what may be tied into waiver and that is that federal law always governs the admissibility of evidence in a federal prosecution it may be that a state warrant is issued by a state  magistrate but when the evidence is offered in a federal prosecution the fourth amendment is what governs and the fourth amendment requires only that there is a warrant issued by a neutral and attach magistrate and that it's based on a finding of probable cause that there will be either contraband or evidence of a crime found in the place to be searched i didn't cite a case for that proposition in my brief so it is a federal question but the confusion arises because of this idea that there was a frank's omission from the  some law enforcement officer had visited this property and assured the property owners that they were in compliance with michigan mero medical marijuana law there was a visit it happened about nine months before the search warrant was applied for the visiting officers did not include monroe county sheriff's deputy glibc who was the off the on on the search warrant glick didn't know anyone had been out there until after he swore the affidavit and the search warrant had been axed executed the officers who made the visit were part of something called operation which is a state police initiative that apparently on three days one in each of three months august september and october  they get helicopters from the national guard and some other federal source i think and they fly around certain areas of michigan and look for marijuana growing outdoors when the helicopter see what they think is marijuana growing they communicate with someone on the ground who goes out and checks it out in this case they saw marijuana growing on what turned out to be mr duvall's property and they communicated with a monroe immediately said oh we're going medical marijuana and we have patients proof there were medical marijuana patients he went in the house and came back with evidence is all over the place about this but probably two or three applications for marijuana patient permission then zimmerman said well i don't see a problem really each patient each patient's plants should be kept separately that's that's a good idea and then he left there was another officer there but that other officer explained that he usually did out of theft and he was just  backup and he was saying there were no green houses at the time no there were no green houses there was a big outdoor garden plot very small i mean relative to what was in the green house it's very small zimmerman said he seen marijuana growing a lot in his eyes from that was no more than forty plants you had three patients a title twelve apiece yes so the greenhouse when you say that that he was served a garden plot this the record indicate that there was no further examination of any other buildings or structures on the premises which might not have been obvious but that might have considered a green house that's correct they did not leave the back or porch of the house so man and his partner they they stood on the dark they talked to mr deval they observe this garden plot which was fairly close to the house but my my question if it whether from that vantage point they have the opportunity to observe whether or not there were any other structures they could see the premises which might have been  concealing marijuana grows they could see a pole barn and in fact that the following june it turned out there was marijuana growing evidence in that pole barn and there was there was growing marijuana and all sorts of marijuana evidence in their polearm but they did not leave the port they didn't have a search warrant they were invited to look around the property and as far as they knew there was this garden  evidence that the property owners had permission to have medical marijuana and they left and they did not do any follow up investigation and that's clear in the record your opposing counsel relies on people the brow two thousand and twelve decision of the michigan court of appeals what's your response to that already of course we don't think it applies although it does and in a sense in the sense that it it could be a frank's omission under michigan law the logic of it is that if an obvious and who sat as here is probable cause to believe that we will find evidence of marijuana trafficking on a property actually knows and withholds information that sanchez the only evidence of marijuana trafficking is evidence that shows also full compliance with michigan medical marijuana law that would mean under michigan law that there isn't any trafficking because under michigan law it says if you comply with the law and you're doing only things in compliance with the law it's not considered trafficking of course michigan law still does consider marijuana trafficking otherwise to be a criminal offense affidavit says is that under michigan law there is probable cause to believe that there's marijuana and evidence of marijuana trafficking to be found on this property and he bases  that on the fact that the property owner is a person who has a cocaine distribution conviction so he can't be a caregiver under michigan law and he also says that there are what appear to be more than one hundred plants and that would be far more then even someone who was allowed to be a caregiver could have so while hypothetically there might be something to this notion under michigan law that it would be destructive of probable cause to withhold information of compliance there's nothing in the record in this case they could possibly support a finding that there that work with the d n a and county authorities so that really you know we can there's an effort the deputy click i just agree there's a no there are no facts from which you can make than inference first of all deputy glick was a road patrol share of until december of two thousand and ten and that is after this visit was made and shortly before the affidavit second he had no reason to know that there were other people who might have been using gerald evolves property to grow medical marijuana the information he looked up sad that gerald deval was the property owner jeremy duvall lived in his own house on a different piece of property it was nearby and gerald deval also owned their property but he didn't live there and sat really clear whether ashley lived there are not but these are not things that you can expect deputy glick to have known or to have any reason to find out it's also not reasonable to say as the defendants suggest in their reply brief that he should be chargeable with the collective knowledge of all other law enforcement in monroe county there's some confusion about whether he actually worked with any of the people who made that visit or any of the people and other information about the duvall's but as i said deputy glick was on road parole patrol from two thousand and seven to december of two thousand and ten he was not in the narcotics and for have a lawful operation not really ok but it's just easier to you to decide that there's no factual basis because those officers never said you're in that the defendants represented that they were going to be able to make out and an entrapment by a stoppel defense and specifically that they were going to be able to show that a federal officer had given them advice that they were going to be exempt from federal law enforcement and so the judge gave them the opportunity to make that showing and reserved a decision on whether he was going to given an entrapment instruction a trial i would argue that they did not make out a basis for an entrapment instruction but got it anyway and the jury rejected it well in general by the way i'm just curious why the department of justice even bring this indictment i mean that you know there was an october nineteenth two thousand imam zero from the department of justice saying in general they're not going to prosecute medical marijuana users and inefficient use of federal resources i think that memo said we're not going to prosecute caregivers and patients because that just doesn't make sense but but general deval is not a care giver general deval is a man who was growing hundreds of marijuana plants and i'm you may not know just in the record because it's not really relevant to the issues on appeal but there were drying plants there was cut out marijuana there were records of breeding marijuana all different kinds of sea and cross breeds and there were records written records that went back a number of years and the original tip was he was bragging in the town about all of the money he was making selling marijuana the patients who came in and testified on behalf of the defense said that they were getting their medical marijuana for free each one of them said that so this was not a medical marijuana caregiver case and there's no reason why either the state or the federal government wouldn't want to prosecute this particular case unless the court has other question josh first one broad comment and then several specific points in response to a government presentation first we can't sit here and pretend this was a federal warrant this was a state court one and  actions our activities are legal and conduct is legal under state law then it should be a state that the district court should stand in the shoes of the state magistrate judge and look to whether the information presented to that state magistrate judge gives rise to probable cause under state law because of course the state magistrate judge wasn't asked to interpret where there was legal or not under federal law holding otherwise would would write the warrant clause right out of the constitution ok that's that's the broader point as to whether mr deputy glick was an architect's office or he was he testified that he was he participated in operation help he was a member of the  team in fact there were three witnesses at the trial that said glick himself personally came to the residence so this ingestion that glick had no knowledge of it or or didn't know anything about it it's simply that's that's just not the case with respect to him being a road patrol officer nothing prevents him from being a row patrol officer and at the same time once a month just like all the other officers he participated in operation help i direct the court to detective hart who testified that he was in an auto theft unit which by the way is a single man unit this is not detroit your honour's this is closer to mayberry this is a small town everybody knows each other hundred fifty thousand people in the entire county right so it's not beyond the pale that these are law enforcement officers particularly the ones who do operation operation help would communicate with each other so we think that it once again argument doesn't depend on whether  clear from the record that glick knew all risking his court to do is allow us to develop those facts on remand because the district court already held and this is a finding of fact by the district court first there was a history of contact with law enforcement he called it the district court characterized the operation as one of the worst kept secrets in the county the district court also said that there was quote some sort of acknowledgement that there was a medical marijuana operation going on here so the district court basically found that their law enforcement knew about this operation so it's not a far cry from that to charge glick with the knowledge if in fact he wasn't there in the first place and the district court expressly found that glick had credibility issues when they were frank's hearing the air all this and that's exactly were all these facts were aired that's where they developed all these facts and in fact once again we tried to and we didn't handle the case blow but defense counsel tried to reopen the proofs and prove number one that if these officers came to the came to the balls house number two they instructed them on how to comply with michigan marijuana law and number three that the duvall's in fact did comply with michigan marijuana law that's why they built the greenhouse of course there weren't greenhouses there in the first place but they built the greenhouses to comply with the advice given to them by the michigan police ok the final point is that the district court's argument was that they were out of compliance or that the government's argument is that they were somehow out of compliance with the michigan medical marijuana law there was no record of that if the district court in fact it found that they would have never given the entrapment by stoppel instruction we believe that the district court found that they were in fact in compliance with the michigan medical marijuana law otherwise they would have never