six years incarceration not as you consider the case today there's something i would ask your honour's to keep in the back of your minds one of the elements of compulsory rejoinder is that the state had all of the information that it needed that is that it had probable cause to charge all of the defenses in question at the same time so the thing that i would ask your honour's to remember is move forward is that the state's position at that hearing one thing that it was trying to prove from the crowd from its cross examination of the officer who seized the substance that turned out to be cocaine was that the officer did not have probable cause prosecutor in this case presumably would have prepared for that hearing and assured herself from that officer that such facts never existed and with regard to that there are two points that i would like to  clarify before we move to the merits of the issue first the state tries to minimize its officers testimony that he thought the substance he sees was open wheel by arguing that it was that that testimony was the result of questioning during the hearing and particularly the bend the defense counsel's persistent questioning during that hearing but this was a defense motion the defense called out officer and it was during the state's cross examination with that officer that he testified that he had no idea what the substance was that he did not recognize it as an illegal substance that it looked this morning not the defenses in fact the defense has the single oatmeal related question which was if it looked like just like oh if you knew why did you seize it the officer referenced the packaging the state is stopped at this point from arguing it the factual position the second point that i want to clarify before we move forward is that the state is brief uses the phrase quote allegedly inconsistent testimony i just want to make clear i'm not arguing today that the testimony between the compulsory joinder hearing and you earlier suppression hearing was inconsistent in fact i'm arguing but the officer was prosecutor that would have prepared the suppression hearing as well they are the same prosecutor i think i would assume that that prosecutor would be a classified two before and had communications with this officer i certainly would have if i had been in her position and i that prosecutor cannot bring that testimony if she thinks that it's not true with that second here and that and again i don't want to accuse the c of lying here and i don't want to accuse the prosecutor of suborning that line that lying that's not that's not what we're here for assuming that they're both true then what we have is a situation where a police officer sees something in consistency in color from cocaine i was often done cocaine cases i know what cocaine looks like this doesn't look like cocaine we have we have pictures of the substance to me and i don't eat a lot of oatmeal i'd i don't know what that would look like but to me it does look like brown sugar or perhaps instant coffee that has been individually packaged out of the larger package this is the sort of thing that my wife are several elements to that doctrine the most important for us this morning is that the evening gala the of the substance must be immediately apparent search of the object i e it incriminating character of the object is not immediately apparent the plainfield doctor and cannot justify the seizure and quote and that the risk of repeating myself the state's position at the compulsory jointer hearing supported by that officer testimony was that the officer lacked probable cause to believe that the substance was contraband install for the for the search in the form of lab testing had been completed police executed crime he intentionally refused to list the such and such substances in the search and ensure he is suspected contraband and he agreed that based on his years of experience he had no recognition of the substance as an illegal substance he agreed that it could have been the only thought it was at the time alternately the trial court credited this testimony making findings of fact that the officer did not recognize and could not identify the into my second point which is that what we actually have here in this case are the findings by the trial court that this stuff was not recognizable as trucks in order to  talking about how this is not this is this doesn't look like what we're accustomed to seeing in drug cases and the pictures which again my position would be they don't look like says that our position would be that packaging does not always provide probable cause particularly when the a law i should say alone particularly when the officer testifies that he had in his different way at a future hearing and i think that it is incumbent upon us to reconcile that testimony is possible to do that we have to say or i believe we have to say at any rate that what really happened here as he had a hunch but nothing more than a hunch and that hunch was maybe it's one of these other drugs suppress that's at all referred to pages are twenty and twenty one on the off the testifies that he believes the substance to be drugs at twenty one twenty one consistent with the agents you give context that eighty three the officer testified that he suspected it may be but he didn't know and on eighty four based on the way it was packaging he suspected it was urging here at fifteen forty three the court talks about probable cause is a flexible commonsense standard merely requires facts available to the office cause is a practical non technical concept that deals with the factual and practical practical considerations of every doubt they buy in which may be simple and prudent persons not legal technicians a next page on page eighty four right now based upon the way that it was packaged you suspected it was illegal drugs correct correct so the officer doesn't have to know saw the pictures of the substance so they have a far better grasp oh well no but the judge did and he sought the substance at the hearing you know and not you know the state's attorney is going to be the one that terminates the charges so what he has to do is as a reasonably prudent experienced law enforcement personnel suspect due to i also disagree with counsel that the evidence was closely balanced i don't believe it was at all in this case the officers testified on the judge imagery saw the cocaine and asking about whether he had drugs he knowledge that he had drugs i think he said it was a bad or stupid decision to have them there they're just there because he's going to fix them that it's surely corroborates all the couch the drugs could have been placed there by either his roommate jackson or by two female cats and ray and also the defense counsel was challenging that chain of custody for the drugs so one of those he if that was again my interpretation is that he had a hunch and he acted on the hunch don't allow these officers to act on hunches like that that's that that's what happened in this case these are not tiny corners a baggies package for individual sale this is not the the white powder that we usually see in cocaine cases this is not the untrue for me to say that i'd never taken the packaging of my that i'd bring with me from the kitchen and put it together in my daily car testimony from the officer that he did not recognize this as an illegal substance once he said even on the ground in the injuns once he says that he does not recognize that it is illegal he hunch that he has is merely a hunch and the suspicion that he has is not reasonable this is this is about him saying he doesn't believe it seemed legal he tested it anyway because packaged like something that might be illegal but he's sad as he does not recognize it as an illegal substance and seizing less is the same as him seizing any number of other things that aren't fun for ban extensive experience that he'd believe that this was drugs that's not what happened here he said the state said the judge said they did not have probable cause