the court bro fuller for the appellate mr du martinez who is president out of custody i'd like to reserve three minutes for a bottle the case involves a number of issues i would like to take each one of those in turn small quantity of marijuana in the car proposition sixty four in california health and safety code section eleven thousand three hundred and sixty two one hundred and eighty one has altered the legal analysis for the automobile exception the district court erred by failing to recognize that the smell of burnt marijuana may not be presumed to be contraband because it is no longer in california given california's legalization of recreational use of marijuana let's say that's true i don't have any reason to doubt that but in this case of by if you if you will looking at the video it seems that your client voluntarily marijuana use and the other probably issues that are bought by this case if there were if he consented is that the end of the story for purposes of this case well know your let me take each one of those issues separately with respect to the issue of consent it is our contention and the government we believe agrees that the district court did not reach the issue of consent in ruling of the automobile exception although we are on to no review we believe that based on this cold record  the government offered no evidence to meet its high burden to demonstrate that mr martinez actually had a valid consent for that so if that was true i gather your position and maybe even the government that we should remain and of the district court content was limited to the armrests and not to removing body panels from the interior of the vehicle also the court never addressed the issue of whether or not mr martinez his statements should have been mirandized and whether they would properly did did your client if you will and found the firearm and so on based on experience does your client to have to specifically consent if if there was consent to each level of the investigation in that that middle part of the car you know we believe under florida vigilant of that that is subject to an objective reasonable miss and that the consent is in the context of mr martinez's motion in moving direct now with the passage of proposition sixty four dollars here your honor the district court erred because the smell of marijuana rested on the presumption that the smell alone is indicates contraband we know that is no longer the case the court's reliance on collins here which while the medical marijuana case was entirely misplaced as we know just most recently in her ruling in the jones case which we believe supports our contention that the smell of marijuana probably cause in the court erred in the night of frank's hearing because we did make a substantial preliminary showing supporting the inference at least of recklessness with regard to some of the statements deputy krieger made to the magistrate to obtain a search warrant for mr martinez is home now  before you get to the that part of this one of the little bit about the marijuana if i understand it correctly or clad also said he had a little blunt that would suggest that he was smoking something outside of a container and he was driving a vehicle isn't that enough to indicate a possible violation and warrant further search you know your honor we do not believe there were objective signs that mr martinez was either is equivalent basically of what would been a cigarette so within that context would you not believe that that would indicate that mr martinez was either smoking marijuana or that he was under the influence of marijuana there was nothing the deputy noticed at that time that would indicate that he was under the influence so i thought it was that would kind of go along with the sending back for an evidentiary hearing if not the consent and whether there was probable cause based on the marijuana violation that is an open container violation i've this question to it is an open container violation an arrestable offense or no your honor so even if that had been a violation that in and of itself might not be enough to give probable cause the right no your honor and also it's critical the timing of that the timing of the open container only deputy krieger was only able to discern that they belonged existed in the car and the manner in which that blood was package because blunts could be packaged in sealed containers that he that it was not packaged in a sealed container he only observed that upon entry into the vehicle so that was at that point he had already begun to conduct this to conduct a search so whether he could smell marijuana on your client's breath or in the car or something like that that would all have to be worked out in a hearing right it would have to be worked out in the hearing your honor however there is no indication for deputy critters police report that he observed any of those circumstances prior to conducting the search right also you're under there is the question of the federal versus state and in connection with the search of the car the government cites cormier for the proposition that state laws only control in the of inventory searchers and searches incident two arrests we think one of the big issues that is going to of contention here is where the fate of federal or state law applies we believe cormier supports our position because it did further note that when the constitutional test for determine the legality of a search incorporates state law which is here we have a state law enforcement officer enforcing state law the jones my fake case as well as people all support the proposition that state law is what is relevant here we have in jones who we have been individual similarly situated where the government's also relying upon federal law and saying aha well marijuana possession is still illegal under federal law but we have state officers who are invest or investigating state offenses there is no absolutely no indication from this record that deputy krieger was part of a federal task force or anything of that nature that is simply not what he was doing what the court what the government would ask the court to do is to simply ad pretty much irrelevant it is irrelevant you're either under these circumstances there may be situations where it may be relevant but this is not that case this is a case we believe is very instructive it helpful in that money case the one hundred and eighty six thousand dollars  forfeiture case where the government made many of the same similar arguments as the lawfulness of that search which was not supported by probable cause under state law this court invalidated that search and those funds roam awfully seized as a subjective intent of the officer play any role in our analysis on that issue it is not your honor but we were quite the court to the objective facts that were present here there was no objective indication that he was a force in federal law and the courts should not rely upon federal law to validate that search here beyond the rule that the defense is seeking is not an extraordinary one it is a plain and simple one that the smell alone of marijuana is insufficient there must be more this is not an extraordinary burden for in law enforcement officer  to to overcome what we are saying is the subjective smell of marijuana as the court noted we cited to the massachusetts supreme court's cases is really that's that is can you be more specific about the role of law that you're asking as to  to serve as a basis as probable cause to search yes you are because there's no basis for an arrest that would be that the smell of burnt marijuana without more is insufficient given the legalization of recreational marijuana for state law enforcement officer enforcing state law to conduct a search under the automobile exception that would be the limitations here there are certainly there may be instances in which facts may arise that would give this officer some probable cause or reasonable certain reasonable cause to believe that this individual may possess an amount over twenty eight grams but just the subjective smell alone does not indicate an on lawful amount of contraband that's what twenty eight five grams or something and you can't just by the smell alone you can't build the quantity of marijuana involved that we contend would be a remarkable feat we know that to be all over meyer heyse addressed that issue as well there are standard questions that are typically asked of individuals to determine whether they are engaged in illegal conduct in perhaps the illegal trafficking of our want or any other controlled substance deputy krieger here did not engage in any of that inquiry he just smelled marijuana and just jumped to the  conclusion that this vehicle contained contraband and that was eric particularly given that deputy krieger is a law enforcement officer that should have been aware of the law at that time then i would like to discuss this search warrant which was a separate that the search won't be the fruits of that search on the walls to that then the search warrant should be invalidated but separately departed the search warrant just cannot stand we know from the cheshire case we know from the underwood case which we  was a stolen car the affidavit did include that information on i would believe that that was not information that was material or necessary to a fine your probable cause to believe that there would be additional firearms and mr more chances help you're saying that they should have put in there that he was a gang member about failing to do it it's no good precisely or without an absolute connection to mr martinez being a captain being a member of a gang that gang information was completely case the difference between you know a courier or a drug trafficker that that was significant in this court in validating that search warrant because it wasn't particular as to put mr underwood into that category of individuals who would likely have drugs at their residence here deputy krieger basically said said specifically based on my knowledge training and experience i know they gang members off to possess weapons such as firearms the only basis to believe firearms or be supported would be in that home also the information included in the search warrant about the b pod information should have been excluded under williams we believe that that information should have been purged from the search warrant because it was the subject of a custodial interrogation during mr martinez his booking as to the issue of franks the court clearly erred in denying the franks hearing we believe that some of the issues that the court found and made credibility determinations to credit mr deputy krieger statements particularly about the tattoo would have been issues that we would have delved into a frank's hearing we did make of substantial policeman area showing raising it at minimum the inference of recklessness in particular the information about the allegation that mr martinez had to anti cereno gang tattoo morning your honor so may please the court my name is briggs matheson and i represent the united states in this appeal i'd like to start if i may with the vehicle search issue the th amendment does not care whether it is a violation of federal law or state law versus city of peoria and defeat the concept of california officers who are authorized to search for violations of federal law you know the th amendment also does not care about the identity of the officer involved in the search or the seizure now if california officers involved in arrests that violate state law there may be collateral consequences for that type of violation but that does not in turn mean that the th amendment has been violated and that's the someone based upon a violation of federal law the case that was submitted in the government's twenty eight jail letter just last week martinez medina that case involved a detention of individuals on the basis of a violation of federal immigration law and oregon law in that case affirmatively prohibited the state officer from effectuating that detention nonetheless this court had no trouble finding that that was not in turn a th amendment violation and that's the  holding of the supreme court's decision in virginia versus more that case involved and arrest under virginia law that was unlawful under state law virginia law affirmatively prohibited the officer from arresting the individual in that case for an infraction and this goes to judge smith your question about what an officer may do when the state law only provides for an infraction penalty and not arrest and the question before the court in virginia versus more was whether that violation of state law in the form of the arrest also violated the th amendment and the court rejected that idea and was skeptical of the idea that the th amendment incorporates state statutory law and that the  th amendment exists merely as a redundant guarantee on the protections afforded by state law so the question of whether a search or seizure violates the th amendment is one of federal law and those aren't my words that's this court's articulation of the general rule in the united states versus basara garcia that's one of several cases that cited at page twenty one of the answering brief that articulate i get your general point but what i'm asking is is there a case that is that if state law does not criminalize a particular action and federal law does that the officer can arrest someone based upon a violation of federal law that specific fact you have those i think the closest case on point your honor is the martinez medina didn't really answer that question that's the problem it didn't precisely answer that question and it  terms of the violation of state versus federal law of course as i mentioned at the outset this court does not need to decide whether federal law or state law controls because even under state law there was probable cause to search mr martinez but your argument that there was probable cause well i want to address in particular the characterization of this case as one involving the odor of marijuana alone because that's not the case under california law marijuana possession and use is not categorically legal there were three violations of california law that supplied probable cause to search the vehicle in this case the open container of marijuana in the vehicle the use of marijuana  an open container based on the scent not based on the scent alone your honor but because mr martinez said so and that's the sequence of events we have you're there you're relying on the blood right it's the blunt and the little sack of marijuana so just to be clear my head is that now open container just to be clear about the sequence of events your honor you're not answering my question so that deputy krieger upon making contact with mr martino smelled the strong odor of marijuana and less than a minute and forty seconds after that mr martino said i have marijuana in the vehicle he said i have a little sack and a blunt in the vehicle and deputy krieger was not obligated at that point to accept mr martinez's representations as true as to the amount that he had nor was he an  required to rule out the possibility of innocent conduct the idea that the blunt or the little sack may have been in an open container he was not required to make that assumption before conducting his investigation and again what deputy krieger encountered that day is st a one interpretation of the paper covering the license plate but that based on his training and his experience also based on seeing the dark tinted windows that can also be a sign of concealing a vehicle with an expired registration or a stolen vehicle and of course this did involve a vehicle with expired registration once he peeled off that paper covering the license plate and so that was the factual context in which deputy krieger encountered the s u v and smelled the strong odor of marijuana upon making contact with mr martinez and again just seconds later mr martinez said i have contraband in the car and under those circumstances deputy krieger was not obligated to rule out any possible innocent explanation so you get the point about to be over because of the license and so on but once the car is stopped and putting aside for a moment the consent issue so far as i could tell from the record he didn't say that the marijuana was then being smoked he didn't say that  could smell marijuana on mr martinez his breath just that there was a smell of marijuana based on that can't tell how much is in the car you cannot tell whether there's an open container  twenty eight point five grams so what do we do with this i mean does the officer have the right to because there's a possibility that these there is a violation of california marijuana law to go ahead and undertake the probable cause or order that there was probable cause to believe that there would be evidence of those violations of california state law or contraband in the vehicle and the nation of the law where's the failure to have  violation for example in the context of a vehicle stop involving the odor of alcohol we would expect a reasonable officer to ask the question have you been drinking how much of you've been drinking all the deputy krieger did in this case was upon smelling the strong odor of marijuana he asked mr martinez how much marijuana is in the vehicle and mr martinez responded that he had a little sack of marijuana and a blunt in the vehicle and of course deputy krieger was not required to hold him at his word about that and given the  other violations involved deputy krieger i think acted reasonably in performing that search and that's the touchstone for this analysis whether under federal law or state law is whether the search was reasonable and reasonable is reasonable n'est looks to balance of the degree of the intrusion on the individual's privacy weighed against the governmental interests involved and it would be strange to say in a federal case when the question is the admissibility of evidence at a federal trial and when the objective facts  point to a more than fair probability of a violation of valid federal law that federal law is not a legitimate interest to be weighed in that balancing analysis and i think it's important in that regard to take note of the implications of mr martinez's argument that the violation of the th amendment is tied exclusively to state law and changes to certain california laws regulating the use and possession of marijuana under that approach federal law as mr fuller noted would be completely irrelevant even in a federal case even when the question is the admissibility of evidence in a federal court and even when the evidence was collected in compliance with federal law none of that matters according state law now is citing this court's prior decision in the charges or not is a case where this court again unqualifiedly held that the question of whether evidence is admissible under the th amendment in a federal case is one governed by federal law and so if federal law is at least a legitimate governmental interest to be factored into the equation then the question is well does the change in the state law override federal law and that cannot be the case as a basic matter of supremacy law so you're saying anytime a state officer stops a car and smells marijuana since it's a federal offense the driver can be arrested saying that i think it's important to note this this question your honor about the identity of the officer is one that this court has firmly rejected so in the cormier case itself the court rejected the idea that a different rule should apply whether state and federal officers act jointly or if state actors are the ones who perform the search and federal investigators only get involved later after the evidence collection financially and related to what happened here that principle you do said is tell him really it there were no federal officers involved the only reason this is a federal case and we're here now is because he was said to sue again conviction for failing under possession under federal law the homeric as a basis whether the officer involved in the search is a state officer is a cross designated task force officer if there is a federal officer sitting shotgun or in the car behind them the protections of the th amendment do not variation because the factual question we have here i can tell by the way the case was developing we're not making leaps and bounds here it's a factual situation by factions so i think you have to be very careful with what the facts are certainly not her and the cases that are cited  by mr fuller at the jones case my fate lee none of those are binding on this court this court however has issued several binding decisions that say that the odor of marijuana is sufficient to supply probable cause and this court would have to overrule those decisions on the basis of a change in state law to find otherwise but again even under state law there were multiple violations of california law that supplied probable cause to search the vehicle in this case in a group that's probably your b can i just ask you a hypothetical let's let's assume hypothetically that the state of california passes a law that absolutely for bit a california officer from arresting anyone detaining anyone based upon a violation of federal marijuana law what would your answer be then it would say that had occurred in this case hypothetically would would we even hear t responses if i may to that your honor the st is that i do think that the martinez medina case is relevant to that point of when state law affirmatively prohibits its officers from participating in any way in the enforcement of federal law and this court said that that was not a violation of the th amendment there may be a violation of state law and that gets me to the nd point which is the question implicates i think a broader question which is whose job it is to police violations of state law under these circumstances and it is not the job of the th amendment and is not the job of federal courts reviewing suppression motions and deciding the question of whether evidence will be admissible in a federal case to address those violations the suppression remedy itself is not applicable in every  container that was an issue that was raised by the defense there was no indication from deputy krieger's report that he observed or believed that he that mr martinez was in possession of an open container and also the state is that open yard that is a question that is still we believe in flux with the open container we do not believe readily translates from an open container of alcohol to what is exactly an open container of marijuana here the marijuana was sealed it was wrapped and tobacco we do not know if that is sufficient under california law to believe that someone has an open container if it is the equivalent of what we believe what would be a cigarette where the only thin here we know that under the automobile exception the only thing that is waived under ross is prior approval to seek a warrant from a magistrate we know that deputy krieger could not have gone to the state of california to match or in california to obtain a search warrant because of people believe there just wasn't probable cause you to believe that mr martinez had violated california law based on the smell loan what that would do is return us unfortunately to the silver platter doctrine where perhaps a california law enforcement officer obtained a in conducting a search of the automobile exception in violation of california law could get around that a lawful search by simply having that case be adopted by federal prosecutors who would then say well it doesn't matter we're in federal court so therefore even though this officer didn't have probable cause to search that vehicle under the automobile exception under california law if this case were charging california court this search would be suppressed where in federal court so therefore it is lawful and we can admit this evidence that was