it's our position that the court raise numerous issues relative to the texas credibility he called him that's true but it came out reall position that the implicitly he came out in the order saying it for example he recognized there may have been some misrepresentation concerning the comparable properties recognized he was concerned about the prior cases with the  favor of the government denied the motion however the indeed the bases for that finding were not addressed it's that the government the detective grant had so many bases for finding the lack of credibility that the the court did not discuss its our position that the court made the finding that for example the marijuana was fresh and moist that he has to have made that finding i'm not asking the court to take judicial notice but these cases were these searches were done in sacramento california in the summer time with fresh more east marijuana found in forty cover those options no there was there was none made but the argument is that the court found for example that was an intentional material mission the court also talked about as they said the eight hundred pound gorilla walking through the the the courtroom i've  never seen a judge make that kind of a comment during or in open court at a hearing questioning a law enforcement officer is the integrity he suddenly be quite frank with you and i it was on another panel in a footnote i believe in our brief our position though is that if if the question is what is two plus if the answer is four and the court is as has come to that conclusion by adding up six and romney on the metaphors reporter there pardon me before we got math we got dots but the but the question is what do we have that says this is clear error implicit in the findings were a rejection of the contention that this officer had done this on numerous other occasions whether that was an issue the roaches that were found the explanation offered weren't you was was not that strong but nevertheless the trial trial judge this judge had this all and came to a conclusion  second can there's citations in the briefs that there were two cans my client testified at the hearing that the neighbor across the street continually took their her can over to their side of the street there were two cans there the judge did not no we didn't do that but the argument on appeal is that there was clearly a victim can we find implicitly that he determined that issue against you well there is an argument to that effect is aren't it's our position that when weighing the entirety of the factors that form the basis for that that were presented at the hearing the court drew the wrong conclusion and clearly that was the wrone as for example one of the more explicit and flagrant aspects of detective grant's investigation one that he found marijuana it's argument that the court clearly erred in finding implicitly that fresh green moist marijuana was found in the whitakers garbage can to believe two witnesses to the right that's true we had two detectives who said that although they didn't know where the cam was that they had the wrong dates they had there they had placards that were disabled placards they called license plates that went on and on and on there's no question there were two witnesses and there was a  our witness said that she'd never put anything in it and we had weeks having exclusion of an expert who said that marijuana growers don't put marijuana in the trash nevertheless and answered your question your honor it's there wasn't there was there was plenty of evidence to show no marijuana even if there was marijuana the trash can was not tied to the defendants and lastly was it well it was in front of the house there were two in front of the house that's the point ok there were two men from the house needed that is the power records which mr ballasts will address right now were that were unfair inappropriate and not unusually high i think  suppression motion should have been granted the affidavit basically contained two pieces of information to try to establish probable cause one is that there was marijuana stands and leaves in the trash can outside of the way because residence and the second was a power records analysis between the whitakers home and three comparable homes the district court found in this case of frank's violation in the district and the government does not dispute that they argue that that was wrong and what the district property is significant much more significant seems now there's still an overall average but the spikes if you look at the there's two spikes over two thousand kilowatt hours and other spice eighteen and which seems to comparable and that the whitakers had a visible air conditioning unit outside the other homes didn't that the other homes had more shade tree they had a porch overhang so they would be expected to use l the i think they were all on the on the same street or in a same vicinity now that ya graphy because one thing that's troubling me here is that is is the issue of whether or not there was probable cause to think that this can indicates that there there was a house right across the street that put its garbage right directly across from the way because property right each of the other homes was about half an acre is i guess in the watts so that's a fair amount of part correct  put in the cut the records from the two comparable houses the power records then really do not give you anything to suggest an inference that the whitakers were growing marijuana the two highest houses were only twenty six and twenty eight whitakers was twenty six and twenty eight percent higher what is the number that i mean i understand there have been other cases where two in two times or three times read more what's what's the cutoff in your view well out of the magistrate looks at it it was one hundred sixty five percent of some of the of the three i think and you're right hundred twenty six percent of the two that were included in the frank situation so the magistrate looks at all that says look if you kept those two out you should have done it but we were is the cutoff why is that not sufficient to say that's a sufficient increase well i don't think there's no any magic number that i can point to our man a cut off the two ninth circuit cases that i've talked about it being sufficient to talk about it where the white house was twice as much and the other time it was unusually high feel case which is lester and district wisconsin district court it said it was considerable and somewhat similar to past i'm trying to get an idea of what you would say would be a maybe the one and we have taken on a case by case and it's unusual not unusual is there any number that for example here is one hundred sixty five percent of some of the houses it was sixty five percent higher than the average of the five houses but only twenty six and twenty eight percent higher than this and well you know this is odd because you have the garbage here and there and  higher than the two or the five comparable houses it really doesn't add anything to to create an inference that that resulted the increased power usage from growing marijuana because there's so many other innocuous innocent reason and there that isn't a range of ballpark that you would expect when it's you know double or two or three hundred times higher then it's more suspicious but i just don't think it really adds anything to any burden you know hearing the government comes in and says conditions there's speculation it was a trailer out front of the house and he went around about that there were no power lines and trailers that are but was or anything offered by the defense of the year when we talk to people in the house to some of the people presented and exhibit the shell the three comparable homes were smaller but the essentially the deputy should do more when it's only twenty percent twenty six percent twenty percent more two of the five comparables to really show that that extra usage was due to some equipment he used to grow marijuana indoors rather than the sources ok the other thing the officer should have done was which he didn't do it was no information no evidence at all number of people that grow marijuana put parts of the marijuana plant in a garbage can a sizeable number don't and then he says probably more guns than jew but he has his opinion highly unusual for anyone that was going marijuana to put any parks any in the garbage can because it's common knowledge and in the community that officers are allowed to search the garbage can without a run growers problem i think by interviewing a number of people here written books on the subject of marijuana growing here is the basis of his analogy was not contested with the district i mean that the defendants have in their argument i am going to try not to reiterate anything this in my brief but there are a few points that i'd like to make in addition to what i've already provided the court with regards to the implied credibility finding i just want to indicate as the court has that it wasn't just the tech of glantz who testified that marijuana recently cut marijuana plant was found in the garbage can at issue but it's supervisor sergeant kevin the scene also testified that marijuana was found in that trash can there the only two people who were present when i trash can was searched and they both testified the marijuana was found in it they searched the trash can in april of one thousand nine hundred nine and they testify four and a half years later when i told her of two thousand and three and even though four and a half years elapsed they both stated firmly that they couldn't remember who found or a number of things about it that was too critical let me say it but kind of bothers the council has pointed out plus there's a deliberate attempt not to put in the two highest the whole thing kind of long since if we look at this whole circumstances the argument can be made that kind of fun to smell test here i mean it's troubling you asked a lot of questions and i'll try to address them as best as i can maybe not all right now your honor but hopefully in the next seventeen and a half minutes i can address all of them i don't think any of that was lost upon judge england he noted all of that and he indicated in a footnote in fact that well actually two footnotes that there were things that problem about this case but he had taken them in consideration what he did is what we have to do or what what the court has to do in this kind of situation you review the search warrant affidavit in its entirety in its totality and of course there were two major portions of that was the discovery of the marijuana that's pushing them for one and the power usage that's pushing number two and to start to answer some of the court's question and these two deputies had searched well over one hundred trash cans and i would submit to the court that the details may be difficult to recall but they both firmly stated that there was marijuana in the trash can detect we say some of the devil's in the details and looking at the picture overall we could conclude it was clear that's what i was getting to we can take each one separately but if we look at the whole picture and you're right we have as as strange results pictures that don't match the stems hiding deliberate hiding a very good at least intentional hiding of evidence that was not that would have undercut the position in the comparison so you take  what i'm doing is it's taking all the good i know you can explain the fun and i have read it anything we can how do you react to taking it as a whole this looks a little bit you're on a court has to take it as a whole certainly and judge england took all of this was presented to him your honor whatever the purpose it was intentional yes it was more than reckless it was intentional and should not have been done and franks clearly states that if that's the case then the court has to add that information to the search one affidavit which the government concedes of course and at that point the totality of the search warrant affidavit has to be examined with those two columns included now with regards to the issue in this  case judge england was faced with i mean to make a determination as to whether or not there was marijuana found in that garbage can and he looked at everything that was presented to him they do it's usually because of carelessness and it's not a practice that they normally do and the court has to remember that there were approximately one hundred twenty trash cans that were searched and they weren't just searched on one occasion the detective testified clearly that if they found no evidence of marijuana on the first trash can search they would go and do a second search and if they didn't find any marijuana on that second search they would sometimes go and do a third search a great certainly from an awful lot that none of the roaches that were found were included in his in his report one would think and i understand he says well i didn't include that because i felt that that shows smoking or not growing but if you're smoking in your program in doesn't that lend weight to growing i mean this whole thing so i mean he uses this sort of standard allegation about finding the fresh moist stems he doesn't mention the roaches that would seem that would be a fairly important i making a probable cause finding the ball if they were saying they were using it for because medicinal purposes they would have used it there and that would indicate they were using it there that's fine but it doesn't even get mentioned no it doesn't get mentioned and i think that the explanation and i make  i'm not particularly thrilled with that with that procedure but it is not an illegal procedure as long as the blanks are filled and correctly now if he had indicated that there were roaches in the trash i i that's very troubling in terms of what was mentioned what was not granted this is years down the road but in terms of the hammy what i'm getting here is the handling of the candidates and in the handling of this i mean and then the other week explanation that i thought week that because in front of an air conditioner for three weeks of trying to have that size the whole thing seems and then the way the evidence was handled granted this was well down the road but it wasn't booked immediately it was sitting in an envelope under an air conditioner where three weeks your honor yes that is quite sure that it didn't look like what he said he found yes what the court had before it down below was in addition to what the court has pointed out the testimony of the two saw with the two deputies that i've been to get to the court and the basically lack or the the failure to contradict reverse here because we would also have to agree on the usage that's he said both he didn't say either one he said that one was not enough i think i have to make a concession here i think without the marijuana in the garbage i don't think contraband will be found in a home where marijuana is found inside a garbage can directly in front of a house and i think the briscoe case had this right if the casual observer is driving down the street and he sees trash cans in front of people's homes is going to reasonably infer that the trash can in front of each home belongs to that home who does not depend on the placement of the homes to and the density of it for example i've seen streets here in the city where it would be difficult to  apartments or condominiums or even very small lots that could be an issue here were in an area where the lots were relatively large and there was traffic and council stated that there were two crash cans and from the house i don't believe that's correct i don't believe there was any testimony that there were two trash cans a fire that house there was testimony that the lady across the street for some unexplained reason took her trash across the street to the whitakers the place out there but there's no testimony that one detective grant got to that residence that there were two there there was just one and i would submit to the court that it is not only reasonable to infer that in an area such as this where you have large locks that a trash can in front of a house the so that house there's an excellent probability not a fair any different than also testifying as to what people who grow drugs do in terms of putting it in the trash the way that his testimony as an expert and that is under spirit as far as i know in the record no one no one questions the expertise and he recites he has his background why is it any less relevant than than the officer testifying and wouldn't have gone to the officer's testimony your honor when detective grant offered that yes the money was being examined by mr panzer the attorney for mr whitaker and it was a defense question as to how the practical relevance objection not the government cannot object ok now mr panzer offered this other evidence and the government of joe actually the court objected and the government agreed with the court that it wasn't particularly relevant  so that is the reason why you have the testimony from detective grant because the defense asked for it and there was no objection to it so and i want to make another point also just very briefly about that expert's proposed testimony counsel in reply brief also discussed the baldwin case and indicated that the expert would have testified about the baldwin case to impeach detective grant two problems one is that when the offer of proof was made before judge england that was never mentioned the only thing that was mentioned was he would testify that people in the cannabis community don't put marijuana in their garbage secondly detect a grant was not the at the end in the baldwin case and they simply what you had was a situation different situation and that's just not appropriate so i would submit to the court that the only issue that that should be before this court is whether or not mr conrad should have been permitted to testify about the cannabis community an overall is let's say one point two six or one hundred twenty six percent what's the coffee why is that enough to say aha that is probable cause as what if it was one point zero five percent one point one zero where do you stand one hundred twenty cases he found marijuana in the trash can and so eighty of them he did it but that means is that by going to a gardening store that sells indoor equipment a gross stuff indoors more than two thirds of the people that they follow from that store taking down the license plates and looking in the trash can with growing marijuana i think that's simply unbelievable because  the cases they found marijuana in the trash can and but people he also says definitely going out that the majority of the time people don't put marijuana parts in the garbage can so that you have at least forty other cases according to deputy grants testimony that people that he followed were probably growing marijuana but they just in find it and that just is completely unbelievable but the second point i want to make and that's the issue is that the history twenty twenty hindsight oh it's what i'd never i wouldn't suppose that if i start canceling out that they would belong to somebody across the street i don't think that's a reasonable  make especially in a little more war communities where maybe you know you don't have garbage trucks going down both sides of the street that they would put both put it on one side street and that's what the cases talk about you can't just assume that trash that is close to a house belongs to us thank you have