your honor the defendant in this case was arrested for america the appeal in this case relates to the motions to suppress that was filed at before trial or at the trial didn't  clearly are the fact of the matter is the it's unusual to argue the facts in these cases and i understand that but i think that this is a very rare case where the facts militate for him i understand that and i would not normally and i have a lot of respect for this judge especially but i would not normally challenge credibility of situations that we have a man and we got fourteen years in jail and  judge i think his finding relative to this particular factual situation was just wrong and i felt it was important that at least we raised that your honor and i understand the standards i understand what has to be done but if you look at this if you look at the factual basis of the officers testimony if you read the testimony you read how incredible the testimony is and i don't inconsistent it is time after time after time i think that in light of that they just did not have probable cause to go into the granite and that rather than argue the facts and ad infinitum especially in the in the light of the standard that you i think it's necessary for someone to read these facts and if they reach a conclusion that the judge exercises discretion so be it but it is our opinion that he didn't properly exercise his discretion it is our opinion and knowing the burdens we have to go over in this case that at least your honour's  most more or less of a sentence if you see that your honour's take a look at it or someone takes a look at it to see exactly what happened in this case and see if it's consistent with the finding if it is so be it but i  officers came into the grads made whatever amazed in them things they did and broke into the house there was no reason for them to break in the house there was no they didn't that they didn't know these people from before there was no reason that they should be afraid parent wanted one of the men said he heard a woman another one said he didn't he heard rustling and there was someone in the house but that didn't mean there was some that there was an danger to them they broke open the door came in the house and along with that and that that goes to the ruled on whether the cure is no ruling factually as to whether they had a right in the house the judge just to get in there and in or just ignore the issue so i think it's important if for no other reason that the court failed in this case finding in all and just assume that it was protective never made a reason never dealt with the issue as to being a nose in the noise in the house never dealt with the issue of somebody hearing rustling never done so the issue is still in fact heard what they said they h protective search but at the can protect or search was not justified they were in the grounds yet ten officers there it would have been and it would have been simply it would have been very easy to go get a search warrant for that house and they didn't get it now and the question is d the doors open when they need a warrant to set your position at that point yes they were in the grounds there was a locked house there was no evidence there was anything in the house there was no evidence that there was any facts in this case i believe they needed a warrant to produce a graph well yes so you're saying there is no there was no observation by any officer of possible legal transaction which would i don't think you want to go there you have to climb up on  the evidence that was in plain view and arrest the defendant the district court also did not clearly error in finding that the defendant's consent to search the house was voluntary but just by the way with that missing drug you know one of the requirements for the plainview doctrine is that the incriminating evidence the criminal nature of the evidence must be immediately apparent this one seems a little weak in this case in plastic fall out of the box then you discuss in the brief how based on his experience he recognizes that this object was was was immediately apparent that these were drugs it was the total circumstances your honor is you know the agents had been following mr soto saw him discard certain drug packaging knew that the canine had officer testified that based on his training experience he recognized it to be narcotics the district court found that testimony to be credible issues well he testified that it looked like the narcotics to him and i think he knew the difference between a cookie ten but i think he knew the difference between the narcotics and the and loaf of bread and if you accept the district court's findings credibility then the officers credibility is that he recognized it to be narcotics and under the circumstances your honor under the circumstances of which he was watching it would be highly unlikely that mr soto would be transferring cookies or a loaf of bread to mr controversy's car in the garage as far as only for people not for any items of evidence and that meant that they had not recovered any evidence during that suite after the suite was over that's when they brought the defendant into the house and as the district court noted under the the circumstances the agents reproach the defendant into the house removed his cops then brought him from his kitchen to his dining room read him his miranda rights twice once in spanish and once in english and then were like pretty heavily on conner you know i do you think we have the same situation similar your honor i understand that one was a residence and i believe condit was a business but under th arrest to defend it it appeared at least in the district court and it also here the defendant is not arguing against the operation of the plainview doctrine if the facts are as the district they saw this on the porch they could go in the house right well in that circumstance ron i believe there would be a higher expectation of privacy if there is a close isn't this an attached garage yes your honor with a wide open door to the snow observation that there wasn't a commercial cigarette that there that was being smoked then i would say i would still suggest that the officers get a warrant if they plan to go in the house because i believe the expectation of privacy is different between the ho in a rare patio attached to the house that's surrounded by the back yard versus a garage that is open to the street and i always go on a weekend in any part of suburbia of yet you with open garage i mean the government is really does not have it all for naught that you are required to if you don't have it all fours case here i mean you have a case connors is his is favorable to you in one sense but i think the he's he's aware that contraband has just been found in his garage i suspect he did not have as much sophisticated reflection as we all are having this morning on what constitutes the privacy of the area of the home  and it's a reasonable show of force or i'm just i'm just looking at a situation multi agency been following the case for a while could easily have had a magistrate on duty were ready for this one right because they anticipated a drug deal going down in that garage or at least that's what was happening i believe your honor that if he c in the situation but this is more like the taylor case where the protective sweep does not constitute coercion i see that my time is up if you have no further questions at this time i will ask for the foregoing reasons the  simply put the facts of the matter and in this case basically when i think militate to they're not going into the house simply put ten people coming to the house without the the person here knowing that it's subject to a search in the media and the media almost community consent is not valid and going back to the first issue the fact the matter is and i think that want to make it perfectly clear i know i i stand for questions of not