argument is united states versus s the st is that like to touch on this search lissa fishnet federal in character that i believe the rule the provisions of rule forty one apply and those provisions had to be complied with the nd point i'd like to make today an argument is that the metropolitan court in albuquerque is not empowered by constitution or statute to issue felony search warrants going st to the sufficiently federal character in a rule forty one  that correctly the supreme court case that the federal government had a hand in that search and i think because of that it's a federal search that triggers st the rule forty one requirement that it must be a state court of record the issue with that the metropolitan court in new mexico is basically a hybrid magistrate municipal court kind of all thrown in one court and the reason for it is that albuquerque is most populous county or city in  certified to the new mexico supreme court but i'm submitting to this court they did not have the authority to confer jurisdiction on a inferior court by rule the match probably court is not a common law court of general jurisdiction it was created by statute by the people by the legislature and because of that the powers granted to the court of the powers denied the court must come from the legislature not the supreme court of mexico is rule judge briscoe we're talking about it is broad it does say these courts will have authority to issue search warrants for any property and i'm paraphrasing from a crime the read from a crime what's interesting is that issue warrants in those cases that you can pursue in your court yes and i think because of the fact that the state supreme court and army whoa and i cited the army whole case explicitly says one which specifically authorizes that in mexico supreme court issues its rules it authorizes issuance of rules but it doesn't it cannot authorize a nother branch of government to increase the jurisdiction power of an inferior court legislature created so i would say that the occasion cannot be delegated the jurisdiction of an inferior court must be created and the supreme court says is by the legislature and those powers you take the argument to the next level if the spring court can issue that rule why can't the supreme court of mexico issue a rule that the metropolitan quirke an issue search warrants are done yana county masters or for farmington what's what's to stop the supreme court from doing that and my contention is the the problem is it's a separation of powers problem the legislature created the court and the legislature has to prescribe the limits and extent of jurisdiction of whether or not it's th amendment violation right that's correct and do you have any case law that would tell us that the th amendment requires warrants to issue from a quarter of record i again i think i say it's a warrantless search your honor and i would go to those cases without a warrant it becomes a warrantless and that's where i think we're at there was no warrant because the court did not have the power to issue that war so i think we're in the status of well ok you roll me through this again the court hasn't has a story under the mexico rule to issue search warrants but you're saying that that power is limited to only the jurisdiction of that particular court yes or no and because the war was issued for a felony search warrant that was not within the power granted by the legislature there's never been there is no statute that grants the much bowing court that power because they lack that  you please the court my name's frederick mendenhall i'm assisting united states attorney for the district of new mexico this case is about a neutral and detached state judge issuing a warrant to search a home for guns and when he was neutral and attached but he also did the already in new mexico rule seven dash two hundred and eight and as pointed out that this rule was authorized it's a new mexico rule of criminal procedure and it's identical to the same criminal jurisdiction over a felony to then issue a warrant for a four felony case and i think history and tradition and contemporary practice cuts against this is already talked about federal magistrate judges don't have a felony jurisdiction in court to hear felony cases yet it's on the data undoubtedly they have authority to issue search warrants for that for cases that ultimately end up as felony cases what's your so i think very analogous situation here we've got and the nd argument about that is in terms of well in this case new mexico the army hold the court spoke in mexico spring court and said that you must have authority by statute of that case i think that it's a very different case it's about appellate jurisdiction they don't talk about the court doesn't talk about search warrants it doesn't talk about criminal rules will do that does a new mexico rules provide the metro court with felony warrant already your honor the they never used the term felony warrant i think the united states position is yes they do have that authority and what do we look at to conclude that and i'm just briscoe this is this is how i think about it throughout history we have never rule without you thinking about it no your honor no rule no to mexico certainly you didn't have to have felony jurisdiction to issue warrants you didn't even have to be a judge necessarily to issue a warrant i think and going back to opposing counsel's argument about similar similarly as the federal statute on the point i think moving on to some other issues in this case mr said lousy the defendant below he challenges the search you can assume that assuming this was federal in character assuming there was a violation at no point has mr said lousy ever argued that it was a constitutional violation prejudice and a prejudice to the defendant or that it was done with the liberal disregard and i think because he's never raised these arguments he's never articulated why you can assume the st threshold issues and just decide on those grounds that he never argued it and i think and pieces i cite united states v polling and united states  both are on point on that issue and they say you know if defendant never during suppression motion if he never raises this particular issue it's deemed waived and the court can just not address it but if the court is inclined and participated in surveillance of the home and then a t f was there for the search warrant that all happened i agree that your honor the reason i think that this is and i'm not trying to say this is a clear cut case i understand it's a close case but i think on balance it is not federal  character and the facts that i would cite we've got to speak detective we've got to stick detective using his confidential informants we've got to stick detective with those confidential informants going out to a state judge this detective goes to the house he's leading the search warrant team he's the one that goes up to the door it's an a t f taking point i admit that a t f agents were there but i don't think that's nest that fact is necessarily dispositive on the federal in nature test  moving on i make some arguments in the brief why that there wasn't real violation here i do think this is a state court record i understand it's not court of record for in every instance by i think that's what the rules are checking the rules are checking to make sure that whoever you go to has sufficient steam it's not  record below for those reasons i think it satisfies the court record requirement and i think the nd rule violation is the day after the fact both violation i think there's sufficient information in the record to suggest that the oath happened before hand but even if it didn't there is no time requirement in rule four point one i'm so i don't think there was a violation of that of that rule and finally with some remaining time i'd like to talk about the substantive nature of the warrant opposing counsel below attacked the warrant for not having the address the residence on and i think the residents will who blacked out the rigid address your honor i i don't know the ffidavit refers specifically to a residence to be sure yes yes your honor i want to know who blacked out that that address i don't know i don't believe it was united states but i can look into that for you your honor i would i would know for you that there are two spots in the record where that warrant is in one spot that you're looking at is blacked out later on i don't have the numbers up the top of my head it is not blacked out and it has the address in the upper left hand corner i think it's in the record around the eighty's and i can definitely  yes yes your honor i'd be happy to do so but it is but in that in the in the record below it is in the upper left hand corner and then it does describe the residents as your honor pointed out i would also say that the standard for  probable cause in the warrant standard for that is whether there's substantial basis for probable cause i think there there is that here there are several cases to talk about having informants and then if that those informants are information is corroborated by police surveillance  your make peace court couple points in rebuttal i think the this is a federal search i do believe that based on the a t f involvement there was extensive involvement it's a federal search and it will forty one i don't think this court metropolitan court is a court of record for you know who blacked out the address on the warrant yes your honor that was as i recall when we received it in discovery and we get these in discovery from government that was blacked out in my memory is we requested and redacted copy and we did get that and that's at page seven thousand eight hundred and eighty three of the record thank you yes or the other point i want to make your honor was that the reason why this matters is that the legislature created a inferior court the statute the statute is not present to enlarge that court's jurisdiction so are we going to permit a supreme court to enlarge the jurisdiction of an inferior court was created by the legislature and if that if we go down that path how far can they go can they again authorize the metro court to issue warrants in farmington or las cruces or roswell and what is the limitation in that power and the whole point is do the people get prescribe how brother powers are going to be for the courts that they create a  judge is and i do believe congress has spoken and any time we have an inferior court and the powers granted were taken away or bridge there's always a statute now in this case there is not one and that's argument that because of that this court lacked the authority to issue a felony search warrant that the search warrants if you read that rule should be confined to misdemeanors and that's the court's jurisdiction well how do you deal with your act does allow but as i understand it your honor does permits from floor to issue rules for the practice and procedure of the courts and in mexico but i think at the end of that and it's in our briefing and something i don't know the page your honor but it