good morning my name is lisa byzantium i represent jesse campbell mr campbell this case is one that should never have come before this court mr campbell got swept up in a d n a investigation of a much  larger dispensary medical marijuana dispensary in bozeman butte and other areas in montana in comparison to his brother charlton campbell who owned montana bud's jesse campbell had a very small provider grow in his home in the garage in the valley of bozeman montana jesse campbell was allotted thirty cardholders that he provided medical marijuana for in comparison to his brother charlton who owned montana buds and had storefront dispensary back in two thousand and sixteen the d became interested in montana bugs because there was information that montana buzz was acting outside the scope of the medical marijuana act and in the course of their investigation they came upon what they call a source of information an individual who was sitting in jail in gallatin county on ten individual felonies many of which were crimes of dishonesty tampering with physical evidence at a crime scene  identity theft fast and it was when they were talking to this source of information that they asked hey what do you know about jesse campbell and it was based upon what this source of information said that led jesse campbell to be involved in this first of all the source of information identified jesse as being a partner with his brother charlton in montana but which we know for a fact is not true but then he went on to say that he would purchase a bulk amounts of marijuana from jesse two to three times a week how quantities for eleven hundred dollars per half pound the points on appeal well first of all the point on appeal would be the suppression of from the search warrant i mean why is the search warrant illegally  montana bugs jesse campbell is not part of montana but so  it dealt with jesse campbell there were two things that were listed in there number one this source of information saying that there were large quantities of marijuana that were purchased and number two that there were power records that confirmed that there was a legit there there was a grow at the location in bozeman on this hidden valley those are the two things that the that the magistrate had to look at and why was it not appropriate to grant it based upon those that information because the release of the reliability of the information that was provided by the source to deal with the point on the search warrant if you cannot go probable cause to make the ministry think that there was a violation of federal marijuana laws well i think based upon the appropriations writer there is a question there i mean the appropriations writer says that the department of justice cannot issue or use funds for the prosecution argue that yes we did where absolutely that is one of the main points on the motion to dismiss or enjoy which is the appropriate the amendment goes to say that the department of justice is prohibited from using funds right on the prosecution of an individual that is in compliance with their states where the f b i agents are d e a i believe they were the search warrant lacked probable cause that is true your honor well then it is true that contrary to what you saw the move to go so one would please concentrate on the points you have on this appeal on the search warrant the search warrant is not based upon reliable information because the agents did not corroborate it the only point the fake corroborated was the fact that there were excessive power records that's it and that's what the underlying district court because there were five to nine times more power than on similar property well and that i mean that's a very substantial number you would agree to that when you well i would agree that it's a substantial number if we're talking about someone's residential property if we're looking at my property in billings montana yeah that would be a lot but i am not a licensed medical marijuana provider and mr campbell was he had been a license with the state since two thousand and fourteen he had openly been a provider and that's why he had cardholders well he was authorized to have thirty one ounces is that correct absolutely ok and they found twenty eight ounces that would be in the condition that could be sold but the total number of ended up being thirty four point eight pounds of marijuana in one state or another is that correct there any property ok and then the judge in this case find that there was reasonable cause to boy that it was beyond the amount allowed by the m m a he did find that in that anywhere in their reasonable basis for him to find that based on the amount of marijuana that was found all together combined with your client statement although your client didn't say how much was there your client did indicate that this makes sure that the officer heard put together would have contained marijuana that was usable and saleable under the m and a isn't that correct he didn't if there was there could be some in there but he also said i can't speculate what he said was that there are twenty eight ounces of usable marijuana for sale that i have what's in that tub of thirty four point eight which by the way is a gross amount and includes the weight of the tub but we don't know what's in that t because they didn't check to see if it's is it wet is it dry and is it dried is it cured we don't know and unfortunately we can't figure out what it is now ok you're almost out of time early or do you want to i do thank you i think i'll start with the issue of suppression since that's where the defense counsel started but i'm happy to answer the questions this court has the search warrant contained the standard of review here activity under federal law in this case there was not only evidence there was not only corroboration with respect to jesse campbell and his the illegal activities that he was involved in but also the fact that the there was cooperation with respect to the activities of montana but it does go to the reliability of the witness in looking at the totality of giving information that is proven truthful about drug trafficking in one area he's more likely to be truthful with respect to two other drug trafficking crimes as well and that's  even in a case when they when these parties are related here we're dealing with the same constellation of and individuals in both cases ok so the raised the point about whether or not the motion to suppress had been had raised the issue of the of the document it wasn't raised at all at the motion to suppress stage enjoin was separate from the motion to suppress and the argument on the motion to suppress was not made that that the motion to suppress was the proper remedy to a violation of a if that makes sense  amendment as prohibiting actions by the department of justice the tinian a search warrant sort of fall within i i think i think it's important to would need to have a good faith belief that i'm convinced that they're not in compliance because they would have to have a good faith belief that they could bring a prosecution in order to conduct the investigation otherwise that there's a potential for harassment or or something like that but i think it is important to keep that distinct from the issue of suppression that i don't think there's certainly no cases and i don't think there's any reason why why the fourth amendment would be implicated  in that and that suppression would be the proper remedy so what is the what does it mean though that if they don't if the d a didn't have a real good faith belief that they were not in compliance with how this comes up it's only brought up because they were sort of the motion to enjoin in the motions press were sort of addressed to correct your honor and again there was there was definitely no allegation is what i found somewhat interesting what who does have the burden of proof so the burden of proof and every district court that has addressed this in the ninth circuit has found that defendant has the burden of proof directed to the department of justice but but it's important remember where where where where we're sitting we're sitting at a appeal for a motion for an injunction and the general rule is if you're going to  move to two inches to get an injunction you have the burden of showing the are entitled to that injunction the only way that jesse campbell is entitled to an injunction here is if he's able to show that the department of justice is this prosecution is in fact prohibiting the states from enforcing their medical marijuana laws and other and as this court has interpreted that it's mcintosh that means me i agree it's a little big a little confusing because it does seem like like like like they can't both have the burden right the same thing i think the the right way to read what the district court said is that the district court or the government has some burden of making a prime official case of a violation i think i think the defense counsel blow made a fair point that it makes sense for the department to have to point to some violations so so that we know what we're talking about in this hearing it seems like the way it should work and sure the defendant is is the one who is raising the issues that he did finish should go forward with something  but it seems like the burden should be on the government i disagree and i think so beside the ultimate burden i think besides the point about the injunction  information and this i think this case is a good example particularly with the point of whether or not mr campbell is in compliance with the application because the government can put forward the prime aphasia case he didn't know in the house and he  mother for in a previous application not in his two thousand and sixteen application does he have to get a new permission every time he applies in order to complete the application he does but i want to separate i don't want to i want to be able to go to if i've answered your question i want to go back to judge by as i was also like to have you address the question of whether the thirty four pounds were quote usable marijuana when they were still drawing  said there were the district court did not clearly err in finding that there was more than thirty one ounces of dry processed marijuana based on the record that dry no i don't believe so because there is no there is no evidence here that dr marijuana was not usable judge the burden of the united states of america to show that the dr marijuana was usable within the meaning of the statute i i disagree i disagree you do want well i think the ultimate burden does does belong on  campbell to show that he was in strict compliance with the medical marijuana is also just as i had twenty eight ounces of usable marijuana thirty four pounds were not usable but i think to find clear error here the court would have to find that the district court erred in finding that more than thirty one ounces were were dry and that there's ample evidence in the record dry drug use we disagree on that no you bring it up an excellent point and when i think it was lost in the district court which is dried does not equal usable the definition for usable is it is dry and it is used for the purpose of alleviating the debilitating the patient has it has to be i'm a dissonant quantity and the only evidence before the district court was jesse campbell's the government presented nothing he says i've got twenty eight ounces that's what i've got he could have thirty one but he only had twenty eight and that's the only evidence of usable marijuana presented anything else of what was in that thirty four point eight of dr process we don't know dr no the government had no expert and that's another thing that the government doesn't know what compliance is so why is it that is that it is the defendant's burden to say i'm in compliance under our statutes the montanas medical marijuana statute it says there is a presumption of compliance if you have the correct amounts and you've got the license and the only way to rebut that is to show that it w for the purpose the amount that you have was not for the purpose of alleviating the debilitating symptoms that your card holders have heard testified to that what he saw some of what he saw he described and processed agent her doesn't know what the medical marijuana industry requires all of those agents and please read the suppression to show how these agents made it very clear i'm not interested in compliance i don't know how many seedlings how many flowering plants how many clones i don't know how much power outage or power issues i don't know anything about manic montana medical marijuana authorized yes it is and ms lucky who was the expert there the the representative from the department of public health and human services which is the agency charged to regulate this said yes it is