good morning your honor said i'm kathleen bliss on behalf of donna gene white i'd like to reserve two minutes place of my time are two key points to this appeal as it now stands and matt is how long do you give the police to figure out why they've stopped someone in the first place here the police reasonably i submit ran license plates they ran the license plate on a dodge charger that's parked in they get a hit it's unclear from the record exactly how that hit came up but it was called a don's five hit which is four felony fugitive warrant s they parked behind it to block it in so that dodge charger was no longer mobile officer chart went to the driver side of the door and the window was rolled down and don white sitting in the passenger side handed the some period of time for the officers to prevent mr white from leaving i do not your honor when the you all do you can tell us that that period at least extended to the time when they went and got his identification yes and at that point i'm always skeptical of these but we take the record as it comes to us the officers say they are detected odor of marijuana that's correct your honor there's that give them at that point whether or not mr white is the person for whom the warrant is outstanding does that give them probable cause to detain him no not based upon the smell why not why not because i mean for better or worse it's still a federal crime to use as marijuana it is a federal crime but these were state officers your honor and they're not entitled to enforce federal law and there decision well we don't know if they're cross deputized to do so there's nothing in the record that would indicate that and there's a ninth circuit case out there and i do have this site and i can supplement it if i may with the court's permission via hundred eighty six thousand four hundred sixteen dollars it goes to that precise issue of state officers trying to in quote enforce federal law is if you make that argument though to us about cross and force meant about i'm sorry cross and for some of the absence of evidence of cross and force meant that argument was never made by anyone your honor ok it's a record is silent on it ok so focus on the vada law for a moment  even though there's a medical marijuana issue on the statute in nevada it's illegal to possess marijuana for non medical purposes under state law right well at that time yes absolutely he he no he did not say that and i would submit it is not his burden the fourth amendment protects not his burden but in the absence of that he's committing a crime and there's probable cause to believe that he's committing a crime joiners smelling like pot is not a crime even the law enforcement officers recognized that being covered in blood is not a crime either but it may suggest that some other crime has taken place now under the letter but i think the question seems to be whether or not order alone odor of marijuana can give rise to probable cause exactly your own in a way what your position on that no my position is  why does it give rise to reasonable suspicion it could give reasonable it would give rise to reasonable suspicion to person to more however we're talking about once we go to the next segment of the issues that we've raised here we're going to probable cause under the automobile exception to search that vehicle unlike the cases that were cited by the magistrate judge one the art of the government's argument is binding case law hundred seventy seven case you can look to that case that's the garcia rodriguez case you can look at that case and see it is so in opposite to what we have here you had surveillance you had a vehicle on the border you had so much more you got other cases in which you have a plain view here you had on white identifying himself the officers admit they ruled out that he was eddie ray general counsel you're moving off of the question i think why is plain smell any different than plain sight or plain here because the odor is so subjective and the odor is could be anything it could be the perfect you my i'm wearing that someone mistaken is for the smell well yes but i mean you're looking at something in plain view you could mistake a gun for a real gun you could make mistakes but i guess i don't understand why  sounds as a matter of law and more appropriate than another because in plain view you actually have a tangible object you can take pictures of it you can see it other and what about playing here and hearing someone say something stupid or course of course order lingers for a while after the object is removed i threw i don't know what the you know like the time is but you have any cases on you know whether odor alone can get right to probable cause in any situation either way yes or no alaska has decided that cisco one was cited by the magistrate judge as well as the district court judge here notably the district court judge did not cite garcia rodriguez the one nine hundred seventy seven nights circuit case you a slightly different question of course i'm sure you're arguing this let's assume for purposes of discussion that there was probable cause reasonable suspicion to take mr white out of the car he's handcuffed at that point correct i don't think there was probable cause to ok i didn't that's not my question listen my question was question was let's assume there was probable cause to take him out of the car and handcuff the you challenge then the warrantless search of the car i don't see in your briefing a separate challenge to the warrantless search of the car at that point it strikes me that none of the reasons that support it warrantless car search at that point are ecstatic we're not worried about him destroying the marijuana we're not worried about him having access to something in the car so i look to your briefing i think in vain in finding that argument am i right that you don't make that argument your honor i would submit that we do make where i tell me where in your in the entire first section of it we argue that he was detained too long of course and then we argued that there was not probable cause right i understand sources are saying far i've asked you to assume that there was probable cause to search the car my question is do you make a separate argument that they should have obtained a warrant before searching the car yes you know i don't make that argument and yes i understand what you're saying no i do not make that argument now in fact they did go get a warrant but notably as the court will see from the record the state or the federal government backed off of that because of some credibility issues with the if i and officer kitchen so the search warrant that was obtained to search the car was never pursued by the government they abandoned it to serve government treats this as if it were a warrant was served exactly and so the bite but you don't make an argument that the absence of warrant valid or otherwise my time then thank you good morning may it please the court elizabeth white for the united states before i begin i want to point out an error in the government's brief on page forty one in a footnote we inadvertently cited rowse versus pamper which was an unpublished decision of this court in two thousand  two we know that the rules prohibit citing unpublished decisions prior to two thousand and seven and we just didn't catch that in the editing process so i apologize for that but we'd like to withdraw that citation the this court has held and car with respect to this issue about smells are different because they're so subjective that really comes down to a question of witness credibility the magistrate judge held and evidentiary hearing where both officers testified and the defendant himself testified and in this case it's sort of strange because one of the defenses is i have a medical mark marijuana card so it's not it's not improbable that there were some smell coming from  yeah and to that i would go to the point about nevada law because because first of all under nevada law the smell even after the medical marijuana scheme was put into place in nevada held in two thousand and thirteen and state interesting question and i don't and and i haven't had a case where we've had to research or argue that particular one arizona says yes i think alaska has said no i don't think about it has had an opportunity to speak to it one way or the other i mean i think that what the what the what the district court said or the court said in cisco is that probable cause doesn't turn on the guilt or innocence of a particular conduct but rather on the degree of suspicion that attaches to particular types of non criminal act so while there may be more possible explanations for the smell of marijuana that are not illegal that doesn't that doesn't necessarily override the fact that even even under the recreational marijuana law in nevada you're not allowed to smoke while you're driving you're not allowed to smoke in public you're not allowed to you know what  nevada scheme very clearly says and by statute that these protections only apply that they apply only to the extent that the patient with the with the valid card and gauges in the medical use of marijuana in accordance with the provisions of this chapter justified to mitigate the symptoms or effects of a person's chronic or debilitating the medical condition now the defendant here was in the passenger seat when he explained was he was drunk he was high and he had been doing cocaine earlier and wasn't in any condition to drive and that's why his friend was driving now that is not that is simply not consistent with the engaging in the medical use of marijuana in accordance with the provisions of the law can you address for a moment so that i'm clear the search in which they found the gun and that was a warrantless search now now in fact in state versus lloyd these were local officers applying local law at the time and state versus lloyd the same case where the nevada supreme court said that you have to get a warrant you know carroll said the original carroll decision that created the automobile exception said that because cars are mobile right that's the original this and supreme court's refined and well not every new car is not a car is not a  fourth amendment free zone the supreme court has said when the reasons for the exception aren't there i'm not sure your opponent argues this so it may not be and i apologize that i'm not i don't know which case you're referring to when there is i will say that i was just briefing a case last week and i've been trying to come up with the name of it there is a ninth circuit case where there's a supreme court case that came out a good came out of arizona in which this oh and that one was about the search incident to ar series of things that add up it difficult if i could just make two points on that the initial when they ran the initial license plate and they got this donz weren't hit because apparently the jackson had been using mr white social security number and it was mr jackson that had the don's warrant they figured out and the district court made a specific factual finding about this they figured out as soon as they as soon as they identified mr white in the car and man and ran mr white they identified very quickly that he was not mr johnson he was not the person with the don's warrant but he did have a misdemeanor warrants out for him right so so the initial hit was because his social security number had been tied to an individual at don's warrant and within a matter of just a couple of minutes i mean i think it was from eight fifty nine to nine zero two they realized that this wasn't mr mr johnson but that mr white himself had warrants out the district court made factual findings that they that they smelled the marijuana coming from the car and that gave them probable cause to do the search and i and i will say there is a ninth circuit case that says that if probable cause that the automobile exception applies even after for example if the if the automobile is towed to the metro towing lot if they had probable cause to search the car at the time of the stop that continues even after it's and you know after it's in the towing facility  because because the automobile exception is brought i think i want to ask you about a separate topic in your time is running what do we do with the problem i think that  it's a problem the for the the difference the distinction that i would make an adding is that ed lang was talking about an armed robbery and robbery with the use of a deadly weapon as a matter of nevada state law requires proof beyond a reasonable doubt or you mean we've had a bunch of members of cases since maybe they're not precedential that have rejected then argue that issue that i have we found is that the definition of deadly weapon includes  i just have problems fitting that construct into what the supreme court has said is required for the use of force i will say that i there's another there's another provision of the definition of deadly weapon that's not the two kind of the two main ones are something that is inherently deadly or something and the way that it's used can be deadly there are a couple of other definitions the tear gas one and a couple of other things i briefed one of the other side issues in a case that was argued about four months ago that the tear gas when i haven't researched it i haven't looked it up it certainly wasn't raised in this appeal well you know this is question now but  still the crime is use of a deadly weapon in the commission of a robbery right it's robbery with the use of a deadly weapon yes so you still have to have a robbery yes because the new definition of it isn't doesn't deal with the former and it doesn't and it doesn't apply to it doesn't fall under the force i was like could you commit robbery in nevada by bringing a gun to a house and saying if you don't let me and i'll shoot categorical approach is not an invitation to legal imagination and a defendant who's seeking to rely on it has to either point to his own case or some case where it actually has been applied in this non categorical matching way and i don't know of any nevada case where someone who wasn't a statute says against property you can use violence against property right right so doesn't that make your non generic robber non generic robbery yes now my my position i mean that really the only answer that i have is that what this court has said is once you're to once you're talking about a deadly weapon now you're in the elements class because the use of a deadly weapon in conscience further in if you are actually using tear gas to commit a robbery i believe that under castleman under a supreme court's decision i cast them and that that i mean that the use of tear gas on someone is is the mission to create  bodily injury or harm and so that would actually qualify this isn't you know in part now it was about i think was massachusetts robbery which you can be convicted of armed robbery if you happen to have a gun in your back pocket even if the victim doesn't see it but under an avowed a law it has to be used in conscience further and of the commission of the crime and if the thing that you're using is either something that is inherently designed to create bodily force  or the way that it's used is likely to cause bodily force or in the example of tear gas that you give i believe the supreme court would say i mean when you if you shoot somebody with tear gas you know you or threaten to you are threatening to injure what should happen here at the very least using a weapon is not an element and use even if it were in nevada it can arise to negligence now back to the marijuana and the odor your honor arizona there sisko wanted cisco to neither of them say that odor in and of itself is enough the cisco two case which is a two thousand and sixteen case is an odor plus there have to be more circumstances arizona supreme court did not decide whose burden it is in that case but this court must apply the fourth amendment as it was intended and that is the government has to show that or a search was reasonable the government has to show that there was probable cause the fourth amendment protects against governmental intrusion it does not put an affirmative duty on any citizen or individual to show the plus part i would also carefully look at those nevada cases look at the alaska case there's also a massachusetts case the cases the court are struggling with this issue because odor in itself simply cannot be enough for probable cause finally i would show this court that as as your honor expressed concern over the facts here the driver actually was inside the walgreens she was never arrested it was only mr white he was in the passenger seat the government seems to suggest that because he was drunk and using the passenger seat there's something aha there's something wrong here now he was being responsible by not driving the car he was setting that seems to cut counter to your argument because it means the car was still mobile on arrest of a driver to take it away and that suggests that the automobile exception would apply it there's no way it could have been mobile because they blocked it in the testimony is replete with that and the driver wasn't even in the well exceeded your extra time so if you could wrap up in a sentence or two i would just carefully look at that record on the facts the social security number didn't even match that's going to be at are two forty seven the basis for th of the car the warrantless search which it clearly was comes from the testimony of officer shart again they tell you why they searched it because they smelled pot and that's just not enough thank you so much for the extra time you're on the case just argued is submitted we appreciate the arguments of both counsel the next are you cases united states versus clown