court a good morning there are two matters before your honor this morning for the court this morning i'd like to address the second first i understand that this court states there are now two states in this circuit that allow the production of medicinal marijuana is very being the most recent that's that's up to this and is moving towards an economy that allows for this product to be manufactured tributed consume it is a prohibition of the fourteenth amendment that we apply the laws in different ways we're not allowed to do that so to say to want to merican  you are able to profit from the production of marijuana while we incarcerate other people and tagging istic to and repugnant to fourteen member women but all right so we did have recent voting in missouri your argument though was that the right to farm act decriminalized it and i guess you're going to have to show me where that happened because i didn't see that in there and i don't think anybody else in the world saw that in that act and i was reading the plain language of is a policy by the parking of justice but that policy is apparently that you're talking about the cold memorandum i think would be good if you stayed near the end into the microphone that policy as i understand it is the department of justice is using its discretion not to prosecute in states where it is been decriminalized it hasn't been decriminalized in missouri that is absolutely correct but then do you have an  argument the argument is that a colorado citizen is a united states citizen or applying federal law in colorado and saying that we we will prosecute those people are giving the but they're not similarly situated because the colorado  lives in a state where it's been decriminalized and the missouri citizen does not live in a state where it's been decriminalized and i understand it ok and i guess what i would suggest to you is that there's not really a constitutional argument to present to the court in terms of story decisive think this is how we would examine this issue i've researched this and i found no circumstance in american history where federal government were going to but look in a regional perspective of saying prosecute people under certain circumstances here and i recognize that there are still some prosecutions that occur in colorado it went from under the guideline for the mission down from what seventeen percent to three percent after this memorandum so you still have that but it is a united states attorney or an assistant united states attorney who's making some determination that says we're going to to prosecute this selection of people and not this election so you see that the argument is sort of premised upon a selective prosecution discussion but that is a very limited examination and say was there was there based on race religion or some other discriminatory practice that was isn't part of it though two of the call memo as is so you talk about decriminalization but that also comes along with that some regulation so so the folks in colorado for example who would be growing the marijuana are under a regulatory scheme where it is monitored and they have to follow certain rules and regulations and so that it put presumably would be less likely to cause some of the problems that the coal memo was trying to address which was sort of the  violence and the other sort of and toward events and activity that's attached to it what about that distance that those distinction but i don't believe that the controlled substance act gauges in that type of analysis and  that's sort of where i stop is we're applying chapter twenty one twenty one two to this analysis and it's the same in colorado or washington or arkansas as it is missouri but you're looking at the  prosecutorial discretion to which one there's no way that the prosecution is going to get every every person doing this right so so there's some sort of discretion isn't that sort of where where we're looking here the decision making process i'm asking the court to more examine that the notion that if one one person in the united states is permitted to engage in this behavior and engage in this conduct and even profit from it then it should not be the case that we incarcerate other people for the similar conduct and that's just a variation that's a variation of the one more speeder over the hill you got me but you didn't get the other guys isn't i don't i don't know that we're saying it as a matter of policy  that that we're applying that to you may have one driver that you and one car and the other driver in the next car may becomes a matter of i can't stop everybody but in this situation we're saying to an entire state where the voters have adopted a particular provision that we're not going to apply federal law and it just seems to me to be a bridge too far to say it's still ok that we're we're permitting attorneys to profit coca cola now has a marijuana infused drink we're you know we're doing something in missouri and the seventy seven year old man is being incarcerated for two more conduct it may be that it's not permitted in missouri at that point in time when he was doing it but it was being permitted in other parts of the united states that's why as it relates to the first argument be i think the what i would ask the court to focus on in the jordan's discussion is these officers went to this this location twice i'm not suggesting that the gate was open or closed or engaging in that that discussion what i'm suggesting is is that the moment that they left and went and and got other law enforcement officers you're not you're not challenging the first visit are ok i i think there's a bachelor determinations in there that the defendant would certainly disagree with but this court is address that and judge england as well but i don't think that this has been really discussed in terms of the second trip and what the impetus of that trip was and that was to to gather information to prosecute this individual the first two officers when they left the scene believed entirely that there is there's was a marijuana grow operation there they they had noted the camera they had noted the smell and all of that now let me ask you about the second visit is there any evidence in the record one way or the other whether on the second visit the officers entered the of the property and i think that is probably the crux of this case your honor and i provided some exhibits that were submitted to the district court that demonstrate the seclusion of this home it sits well off the road it's surrounded by trees there is a private lane that are surrounded by trees that officers acknowledge the gate say that it's not open but in any event this isn't a very remote area of the county there's not a lot of population there and what i've suggested to your the court is to treat this is though it's a row of townhouses similar to our deeds is not really the case where people live there those types of signs  circle drive it leads around to the back of the house there's a front door the officers testified they had not seen the front door and that they followed the road to the back again i my suggestion is that  t have sufficed as a as a or a reason for their entry on the first entry but it's not sufficient on the second entry and it's certainly not for the purpose of why they were coming there i've suggested to the court that now can talk is unconstitutional i think that there is a debate between judge alito and judge scalia within the the opinion of of jordanians i think this type of application is sort of the poster child for why this is a problem officers returned for of a specific reason whether knocking talk is a no is a quiet knock came a we we talk to you about you know something that we've heard i don't i don't really have on your argument here today i don't think it does ruin or feared and was not arguing anything about the the propriety of the second return his argument was is that there was insufficient evidence or he was challenging the district court's conclusion that the part of the case here i'm not suggesting that the officers have the promise of a drug dog similar the way they did in our deans but certainly these two county police officers returned to the scene with law enforcement who are our specialized task force officers they brought them for a reason you have five officers and three vehicles to be here people staged north and south of the of the driveway and then the rest of the officers entered and then they instructed the other officers come on and were going to apply for a warrant but back to judge grossness question did they really enter the curtilage well and and because if i can leave the i can finish and i as i understand your teams they actually entered a porch type area sort of entry into a closed area and here i think we just have going up and perhaps into knocking on the door and that i think is is the again the crux of maybe i did visually answer that i think is very important of a row of townhouses where they walked up on the porch and they allowed a dog to come on and sniff around the dog alerted and then they went and got a search warrant based upon that alert here you have officers entering what was amounts to more than one hundred yards off of the the road surrounded by trees there is a basketball goal in flower beds and a parking area in the in the back of the house and then there is a  oh probably about a fifty foot spot in between the out building where the marijuana was and the the house flower beds were kept and other things around that area there was a photographic involving a barbecue grill and some other air things that were showing that that he spent his time in and this backyard counsel assuming that the government has a majority problem with the second search i'd like to talk to about the independent source doctrine and particularly the application the warrant application affidavits and what do they show about probable cause if the information gathered in the second visit is excluded from that application well that warrant was applied for and obtain prior to them entering the the premise that the roger the shot anyway they had a detainee mr beer who was on a four wheeler coming in the in the from the woods and so there they saw him based upon their presence there so i think it was based on the first everything was based upon the first their observations on the first thing but then they brought back these other officers see what their observations were whether they smelled green marijuana and and i believe everything from the second entry if it is and he did but based upon the procuring a search warrant based on that now i'm sorry it was it was the a search warrant based on what they learned from the second visit or the first visit i would say it's probably both the third they're talking about this the smell both   it was the same search it was the same facts and i think the facts of in laws found in that search were proper you properly applied this was simply a knock and talk there's no change in the law that has been knocking talking unconstitutional besta gate of procedure and that's what occurred in this case so i think it's i think the injury onto his property was fully constitutional and so what the warrant is based on is defiant to the warrant is one of the officers who entered the property on the second entry and so if you just by reaching you know the warrant issued beorn had to address the second entry because that was the officer who suspicious things they smell a suspicious odor they have to leave to go to court when they go to court they run into some other officers who are all testifying in a state court proceeding they say what they saw and they said hey well after we're done with court let's go back over and take a look would you say that  limited situation where charging could even occur because entering you're walking up to a front door what you see in plain view or in this case in plain smell wouldn't would would be outside the fourth amendment and so in this case you concerns about your already doing something that's sort of beyond because scope of the fourth amendment really is it here is strictly a plain smell case the officers are doing what they acknowledge that the whole purpose for their second visit was to smell for green marijuana well i think they put it in those terms your honor you know there but stay certainly the purpose of the visit was to investigate i don't think it was you know just to go smell it was to go knock on the guys who were talk to him but they were investigating what the prior officers had said and as i understood the argument from the brief what's being asked what white is asking for in this case is an extension of the law such that knocking tock is no longer legal if an officer had a reason was to investigate and i see nothing in jordan or any other president that would warrant that extension of the law does it make any difference even assuming that the gate was wide open on the second visit does it make any difference that there were no trespassing signs in plain view as shown by the photographs in evidence the opposite did recall seeing it so i think the record as found by by the magistrate court adopted by the district ruled that it does not extend to marijuana and that cases state the shanklin and i can give the court the cite or i can send a twenty a j letter or whatever would be appropriate it's five thirty four southwest reporter third  at page two forty so i think to the extent that that the argument was was premised on that right to farm i think it's been sort of definitively ruled in that case  i think it's also important for the court to keep in mind that this seizure in this prosecution began in two thousand and twelve so while there are a lot of  it's an issue about which you know there's been a lot of the country's been wrangling with since then in two thousand and twelve was really prior to either of the memos that the defendant raises in this case neither the cole memos had been even written and as of two sometimes a thousand plant grow operation and i think that would always be charged but probably not charged in colorado if it was otherwise being grown for medical marijuana following proper conditions you know there's a lot of ifs there here there's none of that this is strictly illegal grow missouri didn't have a system of state license he didn't place but if this was outside of any type of licensing and so you know even even in states where it's legal that licensee regime matters and you know they would prosecute or whatever is appropriate under their regulations regulates unlicensed grows and this is a completely a lesser grow purpose was to sell the product on the black market federalism i mean don't we have some states that allow certain things and some states that don't and that's just the way it is and it just seems to me your honor that we reduce it to the statement the federal government is making choices prosecute some people and not  when i when it gets reduced to that kind of fact i don't know that that's arguable it seems to me that that's going on in the united is now what happens in every u s attorney's office every day certainly you know they set limits sometimes they got to have more than five grams of crack and sometimes you know even though it's illegal to have two grams you know they set limits right to sort but it's a matter of policy or for an entire region to receive that kind of benefit prior to any analysis being undertak have to go upstairs to win that argument very well ok i know your story i think that may be the place to make it but the reality is that these officers did return for a second trip that was a domino or shin of their of their  application for the one bearden did not address this would with orders or as i can tell and it just seems to me that the second trip being premised upon what all these other officers observed and what they th