before i your honour's before i begin i'd like to give credit where credit's appropriately due to students from our university of michigan federal appellate litigation clinic worked very diligently on the briefing unavoidable conflicts prevented them from being here i owe them a great debt it did gratitude as does ricky brown thank you very much for your honour's ricky in this appeal raised three issues principally i would like to try to address at least two of them this morning my brief time to look to first of all tackle the issue of the suppression motion that dealt with the search warrant of mr brown's residence in march of two thousand and eleven specifically  march thirty first two thousand and eleven this case began on march eighth when ricky was arrested with a number of two other individuals in the evening the reason the motion to suppress was filed was because there no nexus to stamp a list between the evidence that the patrol in and the da had and mr brown's residence it was after all the search of his residence that was that issue not only was there no nexus the information that they had was stale we cite a number of cases from this court honors where evidence far greater was viewed as not being sufficient  nexus for example of the case we cite united states the mcpherson was of an individual who had drugs on his person in front of his residence and that was not deemed to be a nexus sufficient to search the megan's all pretty fact intensive what is the rule that you would study for what creates an adequate nexus and perhaps if you address that consider how thousand and eight this court decided united states versus gunter and i think that was a good start for that rule it stated in this is quote reliable evidence that exists connecting the criminal activity with the residence the notion of reliability i think is a key factor the court obviously used that word intentionally it's not just any evidence it's reliable evidence that creates that level of probable cause after all it is a person's residence that portion that we resume reserve first some heightened scrutiny and in this instance certainly it illustrates why that scrutiny is so important i think that's a good start your honor i also think that the courts continuing focus on the relationship between the two the person or the evidence of their residence is a point of focus that chasm needs to be brought together before probable cause to search the residence can be of another case your honor united states begun third itself gunter was a case involving the defendant who's observed going into his residence before he does the drug deal all observed and that case it seems like there's a higher level of reliability because it's eyewitness testimony right there at the residence with the person involved and then subsequently involved a drug deal that type of level of reliability i think is what this court should be focusing on its future jurisprudence and that's why i raise this issue so strongly john as i'd like to move to the second issue which is in the district court below the subject of a motion in limine a from the government prior to trial the government moved in limited way to have all references of mr brown's medical marijuana license prohibited without much ado there was an oral argument on the matter there was no opposition brief from the defense but in essence there was a short argument and the medical marijuana license was precluded from this trial we believe that was also error we believe that  thorough one of the rules of evidence essentially establishes a relevant standard that this court itself in vienna v and star steal the case we cite  quote extremely liberal or requiring a quote extremely liberal reading in this in this case at that point in time mr brown was charged with trafficking in marijuana an element of which must be proved beyond reasonable doubt his intent to traffic no one including defense counsel standing at this podium to disputes the possession aspect of the marijuana but in trafficking in marijuana they have to intend element must be proven by beyond a reasonable doubt and mr brown has a right protected right by this court to present evidence that would establish the contrary i don't know and none of us knows in this courtroom how a jury would react if they had seen the medical marijuana license as part of the evidence or heard testimony the doctor who issued it mr maybe mr brown would have taken the stand to discuss why he had that narco marijuana licen maybe we would have gotten a legislator involved to say why the michigan has that law it's one of twenty one thousand other states plus the district of columbia what we do know though is that with that bit of evidence in hand the entire rest of the evidence takes on a different tone and color it is one thing to say this person has marijuana an illegal substance in their home they have scales they have baggies they have this illegal substance we even use those words to somehow create this picture of evil or criminality all of this as if you had a filter in front of the facts all of that changes when we now say ah but under the state laws under the laws of michigan that's legal in that filter your honor the whole tenor of this case changes i don't know what that tenor exactly is i think our country with that right now as a whole country as we move to a more liberalizing liberalization of marijuana laws but that's not for us to decide here the only thing we have to decide is this is a for one violation or not is this relevant as to that very key factor that the government had to prove beyond a reasonable doubt intent to traffic i would urge the court to reconsider would judge who did in the district court namely that this issue not creating the opportunity to effect but is that his line yes because this court's jurisprudence in virtually every other circuit in this country has said that a defendant has a right to put on a defense indeed we put that as a standard boilerplate jury instruction in this circuit and others across the country his defense was that document his defense and that element was that document that's such a critical component of this case your honor that yes i do think it also means play or more importantly into the integrity of the system of justice that we have how do we not prevent it how do we not allow sees me or prevent mr brown from telling his own life story when none of us i instance it's all to new your honor and that's our that's our thinking on it while you're up there you can't use the marijuana license to contest possession and your knowledge that and we make that perfectly clear your honor we are not contesting that at all and we don't wish to it's merely the trafficking aspect of this case and he was within the allowable on my out indeed the amount found in his home was underneath that's correct your honor those are the two elements that we focus on in this oral argument and feel so strongly about there is the third matter of course and that's the drug ledger the district judge below allowed in without authentication under issues with regard to that as well we feel that there was not sufficient confrontation rights protected when that document came in but more importantly that document was never authenticated properly it was admitted with the district court saying well it will just go to the weight of the evidence and you could argue before the jury but that's not how authentication works and i thinks that a return to the nexus argument no you don't have in the contrary obviously he was coming out of mr middleton's residence and that somehow establishes residence nexus with mr brown's residence which was roughly seven point four four miles away issue the other argument being that he left his car ok he left his car in front of mr middleton's home is one of the arguments and the car smelled of narcotics according to the canine i don't i don't know how that relates to mr brown's residence at all it's his car it's it was registered to his home but it has no relationship to his residence and god knows if of marijuana it might indeed smell like narcotics legally number two they found cash on him the night they arrested him a large sum we admit it for thousand eight hundred thirteen dollars again i have obtain a cell phone search warrant and execute that warrant on the seventeenth they learn that in mr brown's cell phone one of them he has in his contacts marcella middleton's phone numbers i don't understand how that connects with residence at all you can see to tell it did say it was his telephone but again it has nothing to do so residents specially the kill in this wireless nature of cell phone activity now there was a text message on one of the phones quote he said one one seven five one one two five four one and a quote again i have no idea how that links to residence at all brown had we were not contract phones they were toss away phones again i have no idea how that links to the residence or ability searches residence and finally the officer mentions that the criminal convictions of mr brown when they do run out of his having one nine hundred ninety nine conviction for pot trafficking but in one nine hundred ninety six acquittal for drug offense again i have no idea how that links to the residence but it did that's what did interestingly i believe that the patrolman also thought he had a very thin case for probable cause because if you read the affidavit carefully he repeats what appears kind of somewhat maybe to be the strongest element in the very final paragraph which is that the car they found in front of the house of mr middleton and marriage eighth was registered to the home of mr brown however that gives anyone the ability to search my home for example because my car's registered to my address is beyond me that's why we feel so strongly your honor and indeed we believe that even on a plane or basis this matter would also thank your hono good morning ma'am please the court stephanie states that like to pick up with the first question that was asked of my opposing counsel which was by you just change how do we reconcile or how do we think about the cases that if you're dealing drugs that there's going to be evidence of that in your home and i think is that enough to have drugs or even the best you've got under that is that you have to be an active drug dealer right right i think that the i think that's the way to put it is i think the language of gunter two is ongoing drug dealing and so frazier which would appear to be the worst case for us is really not so bad because all frazier is saying is that a defendant status as a drug dealer is not enough to get into his home and what frazier meant by that was in that case the status that was  think that the best argument for the nexus as to how to get into mr brown's house is that first i want to step back and say that counsel kind of did a line by line reading of the affidavit that's of course not how we review of the circumstances analysis and the question here is whether there was an arbitrary exercise of the magistrate's authority and i think the answer is clearly no the district court also did find good faith and i'll touch on that in a moment but the best argument for for nexus is that we have an amount of heroin that is undeniably distribution amount of half a kilogram of heroin and the ability to deliver that within hours from five forty six pm to seven fifty i think is when they leave the house with the heroin all of this is actually better evidence of the ongoing part of this the ongoing drug trafficking than what you have in our line of cases where you have  on a recorded call with the informant says i need to wait for someone before i can deliver you this heroin and then we know that two other men leave with him and they make some noise about that in the brief like while it had been the other guy who brought it but what we before the magistrate and it's brown's yukon that's registered to brown at brown's house and so i think it's a reasonable inference particularly in line of the already existing case law that says it's a reasonable inference if you're involved in ongoing drug trafficking that will be evidence in your home but here we have a little more because here we have brown's car registered to his home apparently being used to ferry the heroin to middleton's house and then on to monroe what indicates that he couldn't deliver the heroin until someone can he yeah that would be helpful because my memory of the lying which is that is that they call the so and he says i'm waiting on someone then the someone comes help me with that language sure you're on it's it's i'm afraid of page sixty page sixty and it's paragraph six  where the affiant says that milton advised da won the informant that he was waiting for someone to arrive before he left and that middleton would be leaving you know estimates in about ten minutes to meet with the da wanted to provide in the briefing on the standard of review even here and i know we we have a later two but it's the no review as of the district court's decision as brown points out in his own brief on page fourteen because the district court is acting as a review in court but when we're reviewing an issue in magistrates decision this court said repeatedly there is great deference to that decision and again it's not undertaking and an overview of the sufficiency of that affidavit so wanted to point that out and so the district court here i think was right to be that this court had a concern the district court was also right to find a good faith here there's nothing to deter here but i think he's now i'm not there i really don't think there's anything to concede there  and i understand that you know there could be you know some concern about cases like frazier where you know you have someone pointing the finger and saying he's a drug dealer and then you go into his house but we don't have a case before us so that's why i'm not conceding anything want to talk about the lesser more questions about the warrant and i'd like to talk a little bit about that motion and lemonade about medical marijuana along what it took you to took through the addition of that it was an ongoing drug dealer that gives you a right to go to his whole job yeah  yeah and i'd like to thank you i've already touched on the amount that he was involved helping to ferry and that short time in which he was able to make it happen i would also point to the fact that when he's arrested he has almost five thousand dollars in cash on job here when you got another federal search warrant to search those phones that were seized and finds on their evidence that mr brown is involved in other drug distribution two for cocaine and so that also i  mean what we're having to do here with the magistrates having to do here is rely on a dea agent saying that in my my experience eleven seventy five or eleven twenty five for one that's consistent with pricing for an ounce of cocaine in the detroit area so that's that's all i can tell you because you know i don't know myself but i think what that's helpful in terms of the ongoing nature of his involvement in drug trafficking because an amateur let's say that he you know and his defense at trial was this wrong place wrong time and he actually prevailed on a at a beyond  reasonable doubt standard he was not convicted of trafficking the heroin just what it was found in his house but for probable cause i think you know the fact that he has a cell phone that indicates he's also dabbling in distributing other hard drugs to me shows that this is not a  i think the best case is probably gunter from two thousand and nine that talks about how that is a reasonable or reliable inference when you have ongoing drug trafficking and again i  want to kind of get away from any language that indicates status as a reason to get into someone's home is the fact that you are doing this that means that there's a reasonable inference that you can make that you're going have evidence of that in your home and again because i'm struggling with  the nexus issue because a lot of the cases you know you've got jones with the drug deal right that actually incurred inside the home you've got kinney with with evidence of the me lab you've got megan's with signing for a package in a media only going to the home and allison the drug deal happening just outside the home that was searched and he entered the house right after the work wasn't just looking for drugs so heroin that was included but what it was really looking for and the affiant send several paragraphs and paragraphs to a b i n j i think talking about drug dealers will keep paper it's when you're moving that kind of weight when you're fronting to people people are owing you money you've got that's yourself to pay you have to keep business records it's a business and i think it was a boot that says it's not you know it's kind of a common sense you don't need court precedent to say that you know evidence of illegal business activity you're going to keep it in your home so any time you think i'm engaged in illegal business activity no isn't that the outcome of a boot you know isn't that the outcome of your argument i'm a drug dealer you find me in kalamazoo and boy i am a drug dealer i've been caught in the middle of a drug deal homes involved in the criminal activity and we really don't have that here do we we don't have evidence that his home was involved in the delivery in monroe from middleton's house but we do engaged in drug dealing that therefore you have the right to search their home that's correct that's how that's how this court's case is read you know what case there jones miggins and gunter two thousand and nine counter i think two thousand eight is while and you know we also just have to kind of general deference and kind of authority that we've given magistrates to give considerable weight to what law enforcement officers have concluded and to make reasonable inferences about where evidence is likely to be kept and so those are the reasons that i think you know here there is a nexus establish  if that's what you want to stand on i'm fine with it i'm just struggling with the fact that you've got standard paragraphs that would go in that are correct i mean it's true the drug dealer probably does keep papers  her home you know probably just keep information maybe even drugs but i'm struggling with the fact that we've got a protection of the home and that i'm struggling with whether just because you are a known drug dealer i mean let's call it a slam dunk you do it you sell it you're involved in it period does that mean that you get to go to that person's home and look no matter what no evidence of no just the mere fact of being an active drug dealer enables the government to come into your home and search it i'm struggling with it sure and i think one th your mind about it is that it's not as if the case was off to the point where you can literally walk into his home you stop to go get that warrant so the whole missile protected because a magistrate is still exercising authority and over whether to issue the warrant but if all you have to do is put in the standard provisions that we might all consider kind of common sense that it's likely that you do that then anybody who is engaged in the sale of drugs his or her home is open to search at any time yes by committing illegal acts where the evidence is likely to be in the home you have opened yourself up to the potential of having your home searched yeah and if i am committing another if i'm committing the crime of espionage on taking home materials from my office or if they think i'm just taking materials from my office and my now subject to having my home searched out you know again because it's such a good you know one of the ability to say there is a reasonable cause to believe that because you engage over here in this behavior i get to invade your home to check it out and as to drugs right and is the supreme  court has done the state law that's evolved hasn't been to create a rule that lets you into the home but to but to basically it's affirming time and time again that it's a reasonable inference to make but it's not creating a rule i don't think it's permits us to have a rule that your honour's up pick up with my opponent left off i think there is a rule this court stated again and i will repeat what i said in gunter as a quotation here's what this court said in united states the smith a year later in two thousand and seven quote substantial there must be a substantial basis to believe there is a fair probability that contraband or evidence of a crime will be found in a particular place it was quoting in fact illinois vs gates the supreme court case that this has just cited referred to to answer the question about magistrate judges judgement judge black and that's a very good question the fact in the practical approach to this issue and i think that's what we're all somewhat is that if there is person x who is a major drug dealer and i realized frazier says just because you're dealing drugs doesn't mean you get to go into the person's home that's a very sound foundation start with but if a person a major drug dealer then i going to just find one tax that someone unintelligible then find hundreds of text thousands these are the cases that we get we need to found and the u s attorney comes to us and says hey if you want i get ten d s of phone calls over the last week of drug dealing between your guy from his home on one to five maple street and we know because we got a cell phone tower and we're trying to lead it and we know exactly where these phone calls are coming from that's a major drug dealer so your honor when the man district judge gets that type of evidence it's a frankly almost a foregone conclusion that the residence is tied in because the u s attorney's office has done such a good job to tie it in that's the practical aspect that's what a major drug dealing from a brazilian says that's why your honor judge strange when you mention gunter all these other cases those were indeed major drug dealers and there's a lot of evidence suggesting that the drug dealing wasn't going out of someone's home right here was to buy it exactly in it when they're doing their home everyone knows it from the u s attorney's office and the d a because they're monitoring it here we just hav speculation that's the problem with this case when militant picks up his phone we don't hear brown's voice when we open up the phone to her home with huge memory buying things i'm sure on tax message that's illegible about cocaine that has nothing to do with this case or his home or the evidence found in his home or the evidence found in middleton's home or the evidence found in steven wood's car the other car that even the very fact that we're left with they should have kept their surveillance up and they would have found it they waited after all twenty two days to get the search of the house anyway why weren't they surveilling it is my question to ensure that the protections this court has so