race number one five five three six two u s safety david church jr or arguments not to exceed fifteen minutes per side mr michael holley for the p warrant and its execution the first issue turns on what the police officer wrote in the police and the search warrant application that's the only thing it turns on in that application he  he basically said that he came across to wean arresting mr church he found he had been smoking marijuana in his house and that's a fine start for the warrant but the officer to ascertain the existence of probable cause he didn't give the reference he did not say when it was that he had come across mr church having smoked marijuana sales and second of all everything and mr mr charges house for serious felony offenses drug trafficking money laundering and racketeering even though offensive lacking either one of these forces enough to reversed to do to find probable cause lacking either one of these is enough to flaws one is because it's got a lot of boilerplate stuff about rico it know it well the partly or i mean that there's two parts of it one is because it didn't say when this happened reasonable officer would would affidavit the officer reported in the form of a david what he had experienced in sandwich was which was cast in terms of ongoing marijuana possession of course you have to possess in order to use so on going marijuana possession of a fairly well gets cast as insignificant i think in your briefing but not so according to my permission and marijuana once hollowed out cigars packed with several loads of marijuana  i think he said he found he showed them one point well marijuana i'm speaking generically marijuana but ones are not singled joints their whole load of cigars that are that contain ordinarily multiple dosage units of of marijuana so it's a but i would suggest that that may indicate with ritalin for and say hey you know i'm pretty significant marijuana usage i don't know on an ongoing basis the girlfriend in church both said that he smokes in the present as he smokes marijuana and hopes she said i tried to get him to stop but he keeps smoking in the house he smokes but that implies pretty clearly a continuing course of conduct doesn't go with the warrant reports  girlfriend saying is yeah i told him to stop it doesn't say how long ago this happened it doesn't say how many times she's told to stop it is just stated that church does smoke marijuana in the residence yes marijuana smoking gun that does what she said at the time that the officer spoke to her and yes it is his own facts that he witnessed himself but he doesn't say when he witnessed them in haifa on the stale i mean this this reads like the guy this just happened it read like did just happen if you assume it does happen and really what the government is asking the court do is to make that assumption which is the precise assumption of the court and i thought so you would be going under leon it's no good i mean an officer is reading this would have to i guess always check that references distribution rather than possession but in this affidavit does apart from the data issue layout probable cause to believe a crime there is evidence of a crime namely possession which they saw evidence of now hudson basically indicates that if the design is fundamentally flawed like that than the warrant is  i think those was a legitimate move this is as much as much of a of a division between russian and possession with intent as there is between sexual molestation and possession of the graphic images or there's obviously some overlap in that there's that's all it's all under the same role of drug control laws right this are the same come to the same can be said you argue about the hudson situation where we have sexual misconduct on the one hand and physical or sexually related information and so there was definitely an overlap in those two cases but because it was fundamentally flawed and design the court the court rejected it in this case i mean what the what the officer did was use this boilerplate you know paragraph after paragraph talks about what drug dealers do and this is definitely directed towards drug dealers there's there's no question about it and that's why it section four seventeen which is drug trafficking and as a result of using this boilerplate he gets a sweeping warrant to search practically everything in the house it would be the same warrant if it had the right section number for possession if you first six that have any bearing to this case on all controlled substances and per from ilya even going beyond marijuana as is questionable that is a very small portion of this warrant they're allowing them to look through computers through old papers seize anything that looks like he didn't bit by with his own hard earned money that it's of it's the hands of absolutely comprehensive search of his house and all that for someone who's caught smoking marijuana in his house it's it's the officer did the wrong thing he shouldn't have used this boilerplate this was a case where he says all he thinks is mr church had smoked marijuana in his house and he had one blunt which is what some smoke marijuana that's all the officer knew that's all he told this the  use as a relationship of a rubber stamp relationship with the officers here is there any evidence to suggest that there is no evidence of order but essentially that is what you agree with me that it's not a bit it does not qualify as a understand there's a difference between i think there's a difference or even bare bones and an affidavit the reason officer would not rely on it so i don't want to get confused there but i think well it's generally been recognized that leno is going to be disallow or inappropriate for but it is generally interpreted as one that doesn't really have much in the way much if anything at all the way of specific factual allegations what is more conclusory and based upon information a belief from the forms in this or not possession but it wasn't the magistrate issued the warrant for drug trafficking and for that so it was the magistrates the stake and issue in the warran executed are allowed to rely on that word are they not they are if the reasonable officer would rely on them but as an hodson and i think both the case they have to they have to have looked at the original affidavit to see if the magistrate issued a warrant that was more expansive than the war then the magistrate should have is that the argument they should have second guessed the magistrate's decision your ar cause compared to this  and that they would recognize that there's not a date on it i mean i read it that i didn't notice that date was missing first you know when you're in the middle of the case knowing i read when these past events happened and and that is enough to to to make it still wasn't correct i could be wrong here but that omission of the date was actually and i mean the issue was before the before the district court the only proof on this issue is what's on your heart was never told this was a reason to suppress i mean it's not like you know you have a defendant who claims ineffective assistance counsel because of failure to make some objection and the discord dies it and then they come here and and they argue well i was ineffective assistance because failure to strike somebody during board year i mean that's just not the way even if the even if the issue is removed for plain error it actually does not make a lot of difference the error is there it's it's driven dictated by binding precedent it's clearly prejudicial and then the judge was supported by probable cause and was lawfully issued an executed i want to make note of one argument that mr holley just raised before he said them you also have a good faith defense right we do your on can we skip the first step and go directly to good faith we want to you can but i would like to address how you would rather have us rule that the the warrant is valid ideally you know i think it's you know it's debatable i think you're i think you're stronger argument as on the good faith that's all you're saying ideally the government would like the court to uphold the warner home on both on both ends in terms of the sufficiency of the warning alternatively underlay on stand as read like a distribution or there are portions your honor it the one thing i would point out to the court is that when you're in the middle of a criminal investigation i think the timeline showed that the incident occurred sometime around eleven am the want was obtained shortly after one pm and the it wasn't signed by a it was assigned by a criminal court judge in davidson county which is nashville so the court that the detective in that particular case went to a criminal court judge a trial judge in that particular candy as opposed to a lower level judge that would handle general sessions probable cause plenary hearings akin to the to the magistrate level pointed out to the court but one of the things in terms of dealing with the good faith your honor in this particular case the judge when asked by the government at the hearing to make an alternative good faith finding the court declined to do so because it did not need to do so the defendant having failed to raise the staleness argument below deprive the court of opportunity to explore any of that other information that could have potentially been brought to the court's attention for example had we been able to pursue had the defendant raise the issue tha we been able to pursue with the detective whether when he went to obtain the warrant there any extra statements that were articulated to the judge for leon purposes could be considered that we were deprived of that opportunity because the defendant did not raise that argument before the defendant mischaracterizes the government's argument when he suggests that the government said the war wasn't stale the government was simply going over in the in stating its position at the end of the hearing what the what the what the evidence showed it was not indicating that the want was not stay out it was since essentially talking about what had transpired and what was included within the warrant so i think it's kind of a little bit disingenuous and mischaracterization to say that the government raised the issue of staleness were simply indicating as we were going through the search warrant process argued for sufficiency that it was timely and that these events had just transpired so a take issue with that but i would point out to the court there is on the flip side of that so i want to say that the good faith argument the government and the cur corners was sufficient there is ample evidence in that affidavit that would call someone the judge reviewing it to him to believe that that information that those events had just transpired you know but i mean the search warrant is really for drug trafficking and the affidavit the facts based upon personal knowledge are a mere possession i mean i so i have a problem with the over breathiness of the the war and i gree that a warrant could be issued to search the premises but it is it appears to be overbroad because it allows searches as if he is a drug trafficker enters if you're authorized to search for machine does as another example and so forth judge campbell didn't much like the border plate breadth of this war and commented indicating his comments seem to indicate that that's going to seem seen this kind of thing before that's correct you're right like don't do it again and what should we be doing to perhaps put in a couple of exclamation what should you be doing more that more to the point of the u s attorney's office to put an exclamation point on that well i would say your honor to the extent of the overbred anything that was seized outside of what was supported in the war by probable cause that the remedy for that is the exclusion of that information in this particular case i would submit to the court that yes judge campbell had expressed concern the did and it was the government conceded that there was no probable cause for either the rico statute that was cited or the money laundering however there was probable cause to support for drug possession and drug trafficking as found budget's campbell and why the drug trafficking to well i would say smoking the law and that's evidence of drug trafficking i would do that who aren't distributing there's reason to believe based on the recency that he had just been smoking that day that there was a smell of smoke in the residence based on his girlfriend statements that he smokes in the house  basis there be reason to believe that information related to his acquisition of drugs could be found in the house obviously if he's a routine user he has a source of supply so there arguably is evidence of he was the fact that he was receiving a year on i want to frequent basis and using it means he has in common with possessors i mean i guess what i'm kind of what i mean my sense is there are no such facts  it and perhaps you know it would be helpful to hear arguments as to why you think that doesn't matter in this case it doesn't matter in this case because the warrant encompasses the tennessee drug control way the tennessee drug control act thirty nine seventeen four eighteen encompasses possession and casually change of controlled substances it also as we point out in our brief in compass is they're going on seventeen i think four to five which is drug paraphernalia so that there would be evidence there were certainly in the defendant concedes that there was probable cause that there would be drugs inside that residence there was probable cause also that there would be items associated with drugs and that would include drug paraphernalia things to use to ingest controlled substances so there's no question there the the fact that it wasn't as well drafted or as precise this was an investigation where a detective within a span of two hours is running out to get a warrant obviously not drafted by library scholars of believe as the cases would indicate but in the haste of a criminal investigation you have people who are detained on saying they're going out to get the warrant in coming back is to his credit he went got the conceded by the defense that there were drugs in the residence and the officer correctly get the warrant now with the fact that the date was not in there again neither the judge below nor the parties below ever recognize that obviously the judge who signed the warrant didn't recognize that they were certainly it's clear because it's clear from the affidavit the text of the affidavit itself what had gone on that these events it just occurred that this man had just come home with his bag of crystals food that's not something that would have happened months ago or that his girlfriend came back to the house these are events that they fair reading and you draw the judges in town to draw all reasonable inferences not like in the hodson case but can draw a reasonable inferences from the evidence and that the evidence that sit that common sense tells you that these events just transpired there set out  to the extent that the war authorizes authorized the search for drugs and things associated with drugs there is certainly nothing wrong with the war in that capacity and the officers and with the evidence that it is shooting this case is evidence that was seized from a safe and that is the area where obviously drugs are likely to be kept so for what we are here about today for the purposes of this particular case that this search did not exceed the lawful parameters of that warrant in terms of where you would expect to find drugs and then there happened to be a weapon a firearm in the safe with the drugs so submit to the court that the officer acted reasonably yes we acknowledge that it's a boilerplate warrant judge camel was not thrilled with it but in terms of what we hear about today the war sufficient to support a probable cause for that there was there would be evidence of drugs inside that residence and the where the obvious or searched was consistent with what the lawful scope of that warrant was the quick i would like to say that tied in with the problem of the scope was the destruction of the safe i think it's the fact that the officers feel that executing this warrant and the drug trafficking case that they felt like well we should does break this open right now if they had to if they had a clearly defined narrowly cast warrant to search for because drugs as in possession there of and implements of utilization and perhaps records associated with the acquisition of things of that sort in other words an early drawing possession of drugs case they would be not authorized to go into a closed safe and i think that  argument i think they could have still open the safe ok but you i think i think that's all they know at the end that they would not have been on the scene with the sense of we are executing what difference does it make what sense was it what sense was in their minds bedroom here's a safe oh how do we open the safe we have a key here this is on your key ring mr church right this is the key for the safe you up put it in turn it well we need a combination and what's his response  safe i mean really is the remedy that we suppress the evidence in this case because we busted a fifty dollars safe or whatever it was your honor i would think that it's an invasion of his properties and destruction of his property