you may begin thinking you're on a good morning may it please the court counsel my name is sarah fox from mcdermott well i'm mary and i represent the apparent mr daniel mcgovern in this case at approximately four forty five in the morning on july th two thousand and seventeen mr mcgovern th amendment rights were violated many agents broke a glass door invaded the sanctity of his home based on nothing more than a trivial amount of cannabis that is found on mr mcgovern would have resulted in a civil penalty the agents entered his home based on a search warrant that lacked probable cause and should never have been issued in the st place at the time of the search warrant the illinois legislature had legalized cannabis for medical use in decriminalized possession but the ten grams of cannabis for the cannabis control act is a complaint for the search warrant was based entirely on the discovery minimal amount of cannabis found in trash outside mr mcgovern's home the fundamental question for this court is whether irascible officer could conclude considering all of the surrounding circumstances that there is a job of this court in this case is to look at probable cause that is the complaint whether the complaint and yesterday but attached to it were sufficient for the issuing magistrates to issue that search warrant is they have correct that's correct on it and yet you and your standard of review section that page seven of your opening brief you is whether there was a substantial basis for this issue in magistrates conclusion we have a nd district case people vs brown authored by justice jorgensen which is right on point cause for an officer to search a vehicle without a warrant is the same probable cause and as an officer seeking a search warrant that even though there's a diminished expectation of privacy in a vehicle upright and you don't need a warrant for a car the probable cause definition the quantum of evidence necessary to search is the same in either situation situation when courts are looking at the propriety of what happened the probable cause question is the same question i heard it's a totality of the circumstances but it's not a lesser probable cause standard and i asked this question for a purpose i know this isn't a car search them if that's the case in we consider what a panic plea of courts including the our supreme court has said about marijuana and medical marijuana and the legalization of marijuana and cursors cases why wouldn't that also apply and how search cases because the car is very different to the order is different from finding small amounts of of cannabis in the trash it's different factual analysis and it doesn't apply to this case and especially in hill hill looked at the odor emanating from a car but it also looked that yes they did have an residency but they had they did not deal with it the honest search warrant was executed only a few days maybe three days after the end of it but that there are other issues in this case that were not present  apart here i'm not sure how we can say something is stale there was something found in the trash each or four weeks isn't that correct it ties to the fact your honor that cannabis is very easily consumable easily disposed of and so especially with the staleness issue that could have then there's no and it should not be indication that there is continuing to be cannabis in the house based on that and also you know them egg agents they spent thirteen days after setting aside staleness question you have four weeks where we consistently find cannabis in the trash how do you explain that otherwise than that there would be probable cause to believe that there's cannabis in the house on a regular basis there are lots of explanation innocent explanations that it could be he could have a medical license it could be that it could be someone else's it could be that there are several instances that part of this analysis that's probably cause analysis the magmas need to take into account other circumstances it's what the hell court said when deciding on a substantial basis they need to consider all of the surrounding circumstances and just played are the tally up now but we can consider that this is a recurring invest that there was no way it went wait a nd do you sure presidents but then again they're still counting the circumstances can't you look at the way they can and they trashes package that it appears on the appropriate date that it's in front of the same house and fill in some of the blanks it's rare that someone's going to leave in their trash this is my cannabis and i live here so you put together all of the individual factors and draw conclusions from that i think based on polls they need asking you this would be sort of a continuum when is it enough and when is it not enough i don't know when it is not enough your honor in this case that there are only two banks that can be concerned that the problem  ok and we have something more in this case a man who was on the th that day it was actually an individual who was observed taking the trash out and so that's something in addition to the  it was not was in fact a woman and so that can't play a part into it that's not in you know that was not mr mcgovern handling the trash as environment or it is the issue so much who took out the trash as opposed one of the other things you argue in your brief is there were such small amounts that they really weren't significant but couldn't the fact that there were small amounts found on a regular basis demonstrate really that that stands for the proposition that you cannot obtain a search warrant to investigate civil violation not this time your honor this alone forms the basis for the search warrant after the last trash pile on june th didn't stop thirteen days to find additional evidence finding none they still applied for a search warrant that did not have probable cause and they interrupting your time is up if you want to finish your sentence and then you'll certainly have time for me and i and i have that everything i need to do so thank you your honor thank you very much mr barret beginning was that when you address the issue have jurisdiction we talked about at the beginning we are looking at the magistrate's determination and don't we as an appellate court needs to look at and give deference to bad decision deference is paid to that decision and that so long as this court ensures that there was a substantial basis for that decision looking at the totality of the circumstances in the four corners of the document  you know the state and the people would ask that you refer the judgment below because there was sufficient facts and there was fish and there was sufficient evidence tying the defendant to the contraband e i would like you did explain to me why the fact that this current have been a function of a medical marijuana prescription doesn't  preclude the search warrant in this case in other words maybe it is suspicious maybe it would lead to a knock and talk would if i'm the judge and i'm looking at this complaint the fact that you haven't discounted the very real possibility that this person has a prescription for medical marijuana why shouldn't that cause this florida to fail or i think importantly it is of the state's job to rule out potentially innocent explanation like medical license or prescription you know that's something that the defendant can certainly present you know the burden is on defendant to come forward with that information and present that to the court the state and law enforcement are allowed to in this case we didn't have a completed offense we had minimal amount but the minimal amount indicated the potential for criminal activity not that the any othe a completely legal basis and i don't see i'm having a hard time figuring out why it should go one way or the other in will the supreme court did talk about medical marijuana so hill did not say medical marijuana is irrelevant to the question of how because it said in the context of our rehab this odor it doesn't make sense to worry about but i'm wondering whether we should be worrying about it in a private house where it's a national woman and negligible amount in the garbage and let me change the hypothetical let's say that i have a serious pain problem and i'm regularly taking one of and i put my hydrocodone in those hell packets for the next month and each week i'm throwing out the pill packets and you're testing for residue and you're finding controlled substance residue residue in those little you're the police officers maybe that guy in that house has a prescription maybe he does are you saying that's going to be enough to allow a search warrant i'm saying that the law doesn't require the state to rule out  there's just so let's say you know the four grams that was discovered in the trash let's say that the defendant did have a license or a prescription for that the defendant is able to present that to the court and then case is dismissed but is also has been breached right in the interim right now here case people be brand out of the th district that says where an officer is approaching the home as a visitor would and has a legal right to report or not to talk and observes what's in plain view or smells or detects what's in plain smell the odor of cannabis would support a probable cause for a search warrant in that case  i apologize in brant the only argument in opposition to a search warrant it were just considered was whether the kernel it while they never considered b criminalization or medical marijuana correct bills i'm sorry go ahead i was to say in other words how do you respond to ms faxes argument i think that with the true the two trash pulls where you do have indices of roads residency that would in effect increase the likelihood that the other cannabis that was discovered in in the other trash more directly to the defendant by way of these other two other trash holes where we do have those indices so would say you know what what we're trying to do is diminished hampering the evidence of you know someone randomly just throwing hurling a trash bag into somebody else's trash we what we're trying to tie specifically that bag to the residence and that defendant so is it possible on those dates that someone randomly just threw a bag with with marijuana in it i'm sure that's possible but it's less likely given that we have these two trash pulls that directly tied to this defendant so i would would it would at least increase the likelihood that these other two events these other two dates were tied to that  can i enquire this question of is it appropriate to seek a search warrant under the criminal code one await to investigate a  violation what is characterized as a civil violation i recognize that it's still contraband but everything you found is in the amount of a civil violations of we get a criminal search warrant investigate a civil violation the trial court addressed that and although the amount they discovered while i have you know on me i don't think you need  assume or should assume that the amount discovered is a civil violation we have four grams that might indicate one thousand five hundred and twenty grams more than that so it's a civil violation that reasonably implies the potential for you know a greater quantity of criminal proportion that's how i would address that  you so the bottom line counsels there is no case law one way or the other misfires was unable to point to anything and neither can you good argument that we thought there was a problem with the judges issuing the warrant you in your briefs for the st time bring up the leon good faith exception why haven't you waive that exception by not presenting it in the trial court  you're at you're addressing me with this question that would be right ok the state didn't have an opportunity to address it because police misconduct was never raised it was simply the  exception is that the officers reasonably relied on the goods and the good faith of the complaint morant on the probable cause question and that where you were a notice of the state alone filed a very detailed written response to the motion to quash the search warrant but they never brought up the alternative justification for leon good faith some wondering why that isn't way on even even if it is waived this procedural bars are essentially limitations on the parties and not in this court so this court could go ahead and decide that the police were acting in good faith no certainly the granting of the search warrants affirmed the good faith of the police and what and what they were doing and then the  courts affirming their prior decision issue a warrant indicated that there was good faith so i think that there's enough here in the record to support that there was good faith in this court certainly about right but the defense brought the action and you chose not to raise that as a defense to the motions press that you but trial counsel the propriety of the police investigation and then the decision to grant the warrant were all in accordance with the law and that's what was found so i think that just thank you your honor i have my st plan rebuttal is that the state did waive that good faith exception but even if this court were to consider that it should not apply there was no good faith in this context the police basis  mt anonymous sources which after there was no traffic found an enormous source of information was disproven in proving to be false they still continued with this investigation the complaint is not entirely actor it's misleading it's based on four trash balls and the judge in the trial court below faces a situation for trash balls and the fact that he believed in that the individual in the video was mr mcgovern taking out the trash when in fact it was not authorization of cannabis for medical use those are statutory contex that should be taken into account while it's not the state's job to disprove innocent explanations they do need to take this into consideration in their