court may recall from when to say there's still construction in my house i moved to a different spot hoping it would be better and i think it is somewhat better but if you're having difficulty hearing me and all i can do is ask you to tell me and i'll certainly move myself w mister koppel's talking but please the court i'm here on behalf of the smiths today there are i think three questions before the court today the st one is whether the detention of mister smith at that that come and go convenience store in springfield was valid under the th amendment the nd one is assuming that it was which of course i don't can see whether the warrantless search of the vehicle that he was found in was permissible under the th amendment and the rd one was whether is whether he was entitle to an instruction on the glass or included offense of simple possession of methamphetamine so i take them in order with respect to the detention and what happened here is the court's aware i know is that about an hour before the encounter that resulted in this for smith's arrest officers saw a vehicle that they discovered as they after they ra the plate didn't have the license plates that went to the vehicle and so they began to initiate a stop and the vehicle sped away they just they had this continued pursuit because  springfield police policy which is a good policy wouldn't permit them to pursue someone who's just got a registration violation and an hour later the same officer who had seen that vehicle was informed by other officers that the and so that it couldn't go anywhere and they converged on the come and go and did that and then began to approach the political with guns drawn and forestall the passengers to have to leave and our contention is that that that that action detaining the vehicle in that way it was not justified by the information that that the officers had at the time they did it all they did it was that a car written by someone whose identity that it was no one had fled from they would know whose car it was because of the registration issues so it was a situation where you can presume that people are driving their own car and they had heard apparently that at some point in something at some time before mister smith had been driven driving that car and they had heard that mister smith my again have been involved in some potential offenses involving possession of firearms since he was in fallon but there were no warrants out for mister smith and they didn't really have to get the nation that indicated that he was driving the car today that day when it happened and said i would argue that under united states versus here it is which is cited in the brief some explanation for why i have the wrong plates in issue an appropriate citation but we don't think that the detention that happened here was it was sanctioned and you know basically everything else flowed from that to prevent a nd plane i mean it seems to me to be pretty hot and you go that you would do that well i guess the only the only issue is that they don't know if the same person said we're talking about an hour later  well i mean i you know i guess that's i mean obviously i mean i don't agree with that i mean i can see the argument but i think the problem really is that the important problem with the problem that i have with that is there has been a significant passage of time we don't really know if it's the same person who fled if it's not you know we don't really have any reason to think they'll flee again in kharkiv flee by itself so well why isn't there at least reasonable suspicion to believe that the same person is driving the car sucks that they could do a terry stop and check it out right st i don't think this was really a charity stop i mean you this is a situation where they where they are blocking the car  and you know approaching it with their guns out and saying everybody get out that's not really an that's not a terry stop situation and that but the nd issue is i think given the lapse of time whether there really is reasonable suspicion no cause to commit offenses people commit offenses and you know really know if anyone's committed one here or at the same person it's there but i mean assuming for the moment that that that the detention was proper i think when there's still a significant with the search because what happened what's they've they've got the car blocked so it's not going anywhere they've got all the people out of it at that point one of the officers said well i smell marijuana inside and so then they say to themselves  why now we have probable cause and searched a car but the problem there is you know this isn't a car that's sitting at the side of the road and if there's nothing in it you know we're just going to let people go this is a car that they have have determined has a registration violation they've stopped it it's not going anywhere they take people out of it so there is nothing to prevent them from getting what we want and that's what they should have done what about the fact that they found they saw that gun but i'll emphasize again the magistrate judge said that shining the flashlight in the car which was what resulted in seeing the gun was necessary to see if there was if there were any more people in the car and that i mean that's clearly not what the evidence shows if you well it wouldn't be a search if you just if you just walked over there and looked and i think when you shine your flashlight in there though that's more of an intrusion then i would say that constitutes a search james authority for that proposition and don't have a case for euro and just it just to kind of clarify the the the consequences of the argument it is true that after he was arrested according to officer garbus who did not record so i think it's clear that that had that methamphetamine in the gun not been found he would have done that so i think that if if if the search if the search argument wins then it follows that those statements and  bag about thirteen grams of methamphetamine and some plastic bags of a scale there was certainly there was evidence that that was more bass amphetamine than most users generally have but the person who testified about that also said agreed with defense counsel that you know if you're methamphetamine user and you have some extra money you might buy ice mexico or methamphetamine to avoid the danger for multiple transactions so  could have found a lesser offense he's entitled to have an instruction on it i would argue that he said he was entitled to an instruction on that lesser  very well you may reserve the balance mister coffey will hear from you please the court this is my st time doing this hopefully everything will proceed well other than the fact it's calm that i can't see you but i know your voice so i think that's not going to be a problem as i said my name is full copy i'm arguing on behalf of the government in this case with respect to the stop i think the st thing we need to understand is the vehicle when it's located probably an hour later it's still in violation of the law it still has expired tags whoever is driving the car i think it's reasonable to believe that it's the same person but it doesn't really matter at this point somebody is driving the car somebody is driving it illegally because it's got tags don't match the car so whether it's myth or not doesn't matter at that point so the car then police and they have a right obviously to stop the car the officer referred evidence was stale but we're talking roughly two months and i don't know how that information becomes stale since he hadn't been arrested on it he was a suspect in it but regardless the st issue is the question of whether or not they can they can pin the car in and the car has fled and the policy doesn't allow them to chase the car so reasonably speaking at the commonsense move no damage to the occupants no damage to the car we stop seven a car that has fled from the police were there to felony flaying or misdemeanor playing they have a right to stop the car and they did it ok once they stop the car now they see that smith is driving and we already talked about what he knew about smith we knew had been associated with the car we knew about these prior incidents they knew he was a convicted felon obviously at that point they had the right to order him out of the car along with the passengers and they do that and they search him they don't find anything he agrees to the search but while they're shining the flashlight into the car they see a firearm they know he's a convicted felon a miss carlyle says i don't have any cases that say shining the flashlight you know into a car is a search i don't think she's going to fight any because the law on the th circuit is using a flashlight i believe this is the law everywhere using a crash light to eliminate a dog in space does not render that search ample authority on that point so when they see the firearm  obviously gives them the right to search the interior of the car but we had other reasons we have a passenger who asked for one of the officers to retrieve something from the car coat it in the coat is a roach a bird marijuana  cigarette and when he retrieved the coat he can smell the odor of drugs inside the car so that gives them a nd reason to search the interior of the vehicle and that's of course when they find the evidence that's when they find the bat that's when they find the gun  so realistically i don't i know that miss carter said she was confused by my argument and her reply receipt says that and i hopefully the court isn't but to me it is a pretty cut and dried they had a right to stop the car we had ample reason to go inside the car to seize the firearm we knew he was a convicted felon therefore that evidence is admissible and he statements he makes after receiving in waiving miranda warnings is the miscible  government sees as pretty much as an open and shut case so with respect to the question of the submission of the lesser included offense this circuit unlike i think the state court system which were recently went back to like an automatic submission rule where you just submit everything and let the jury pick it out in this in this circuit the has to be some basis in the evidence simply because it's a lesser included offense doesn't mean you automatically submit so there have to be some basis in the evidence from which the jury can determine whether or not there's a possibility that this was use or a mouse now the best arguments for the defendant in this case is well it wasn't a huge amount of math he didn't have a he didn't have any money you know our evidence was that generally speaking individuals who sell drugs had money and he didn't have that but we did have was we had testimony that this was a dealer amount of math we had testimony a gobbing baggies i think i said in my brief two scales but if i read the record correct and there were actually three scales one scale in one place to another i don't know that it matters any time you see scales but testimony is that's evidence of distribution if you're a user you can figure out how much you want to take you don't need to be measuring it you have a firearm which normally is associated with with distributors more so possessors but i think the key here and i think that what changes this case from the average case i mean you can distinguish certain cases by saying wow in that case there was more money or in that case for example in one of the cases it where they said they should have given the instruction the defendant testifies hey this is a user amount and i would submit that in that situation if we had testimony like that i don't know how you get out of giving the instruction but we had the opposite here what we had was the individual telling the police i fel this stuff i don't take it i sell it to to to earn a little bit of money but i'm not a user of this substance now the only way m tried to get around that is to say well the jury maybe didn't have to believe it because that statement unlike the others wasn't recorded my point would be but it's they had evidence it's up for the jury to decide and without some contrary evidence it seems to me that there's simply no basis in the evidence and that's the test for submitting that lesser instruction i think obviously it's a much closer question if he doesn't if he doesn't make those statements point but when he makes those statements he excludes any possibility that that is a user i'm out rather than a dealer i'm out so that's basically i have extra time left but that's basically my argument unless the court has questions i weary well you're not required to apparently knows that he's a suspect in some other incidents a couple of months ago doesn't know that there are warrants for him because there aren't any so it's not like he can arrest him for those and and he knows he's a convicted felon but the last time i look you can't be arrested just because you're a convicted felon so i'm not sure i'm not sure that that that that really helps i also didn't hear from mister copy anything about why once the car had been  the point is you know one of the things about the th amendment is you're supposed to get a warrant you're not supposed to just say well i've got probable cause so let's forget about the whole army well the automobile exception is and that  uniform rule as opposed to a case by case inquiry into whether they could train no one from the car i don't read the automobile cases saying that i think it was one of them says the th amendment doesn't evaporate just because what's being searched is not a look we'll i mean i think the warrant requirement now i don't think so what's your best carious that says that the automobile exception does not apply when the police have time to get a warrant or could have gotten a warrant is there any case that says  well we have your brief i just thought you might have something in mind since you're pressing that point i don't have anything to to to to bring you right now the other thing that i did want to talk just for a moment about the yet the lesser included offense issue i don't think that the case is requiring that there be contrary evidence i mean that would be a violation of the right to prove beyond a reasonable doubt in the and the rule that in general the government has to prove all of its out of the elements of its cases i think what the cases say the federal cases and i agree with mister copy that the missouri state court standard does is much more leans much closer to submit anything that's requested but the i think the federal statute just looks at what is in front of the jury and what's in front of the jury here as mister smith's attorney argued it is you know this wasn't think that's enough to to allow a jury to say well we don't have to believe officer marcus and we don't have to believe that this was more than then a user about so he must have been have intended to distribute it and that's all i think you need in order to get a lesser included offense instruction say i had one question about that i haven't read yet the closing arguments in the trial but trial counsel for smith argue that he was not guilty of the drug offense speak because the evidence didn't show intent to distribute and it could have been just personal use i think that's right but let me take a quick look a